Red Bull GmbH v Total Eden Pty Ltd

Red Bull GmbH (the Opponent) opposed the registration of a trade mark by Total Eden Pty Ltd (the Applicant). The dispute concerned the Opponent's claim that the Applicant's proposed trade mark was deceptively similar to its own well-known RED BULL trade mark and device, and that the Applicant's mark would be likely to deceive or cause confusion due to the Opponent's extensive use of its mark in Australia. The decision was made by Hearing Officer Michael Kirov of the Trade Marks Hearings.

The legal issues before the court were whether the Opponent had established grounds for opposition under sections 44 and 60 of the relevant legislation. Specifically, the court had to determine if the Applicant's mark was substantially identical or deceptively similar to the Opponent's registered trade marks, and whether the Opponent's use of its trade mark and associated device in Australia was so well known that the Applicant's mark would be likely to deceive or cause confusion.

The Hearing Officer found that the Opponent had not established its grounds of opposition under either section 44 or section 60. The evidence presented by the Opponent, while demonstrating significant global and Australian sales and marketing of its RED BULL Energy Drink and associated trade dress, did not satisfy the legal thresholds for opposition on the grounds argued. Consequently, the Opposed Mark was permitted to proceed to registration.

As the successful party, the Applicant was awarded costs against the Opponent, to be determined in accordance with Schedule 8 of the Trade Marks Regulations 1995. The registration was to proceed one month from the date of the decision, unless an appeal was filed, in which case registration would be stayed pending the outcome of the appeal.