Red Bull GmbH v Bullsone Co., Ltd

Red Bull GmbH (the opponent) opposed the registration of a trade mark by Bullsone Co., Ltd (the applicant). The dispute concerned the applicant's trade mark application number 1663484, which the opponent argued should not be registered due to its own trade mark having acquired a reputation in Australia. The matter was heard by Bianca Irgang, a Hearing Officer.

The primary legal issue before the court was whether the opponent had established a ground of opposition under section 60 of the *Trade Marks Act* (the Act). This required determining if the opponent's trade mark had acquired a reputation in Australia prior to the priority date of the applicant's trade mark application, and if, because of that reputation, the use of the applicant's trade mark was likely to deceive or cause confusion.

The Hearing Officer applied the principles established in *Registrar of Trade Marks v Woolworths*, which state that confusion is likely if a significant number of persons are caused to wonder whether the two products or services come from the same source. The assessment considered all surrounding circumstances, including the use of the marks, the buying and selling of goods, and the character of probable acquirers. The rights of the parties were to be determined as at the date of the application, and the potential use of the mark by the applicant, not just its past use, was relevant. The Hearing Officer found that the opponent had met the onus of proof regarding the ground of opposition under section 60.

Consequently, the Hearing Officer ordered that the applicant's trade mark application number 1663484 be refused. The applicant was also ordered to pay the opponent's costs.