Red Nose Limited v National Cancer Foundation Limited

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Opposition by Red Nose Limited to registration of trade mark application number 2226685 (36) – BROWN NOSE MONTH – in the name of National Cancer Foundation Limited

Delegate:

Louise Tuohy

Representation:

Opponent: Edward Heerey of Kings Counsel instructed by Davies Collison Cave

Applicant: Luke Merrick of Senior Counsel instructed by Richard & Evans Lawyers

Decision:

2024 ATMO 152

Trade Marks Act 1995 (Cth) – opposition under section 52 – sections 44, 60, 42(b) and 62A considered – none established – trade mark to proceed to registration

Background

This matter concerns an opposition by Red Nose Limited (‘Opponent’) under s 52 of the Trade Marks Act 1995 (Cth)[1] to the registration of the following trade mark application (‘Application’) in the name of National Cancer Foundation Limited (‘Applicant’):
Trade mark number:   2226685
Trade mark:                Brown Nose Month (‘Trade Mark’)
Filing date:                 9 November 2021
Specification:             Class 36: Charitable fundraising
[1] Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) or regulation of the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.
The Application was examined as required by s 31 and advertised for possible registration on 10 April 2022.
On 10 June 2022 the Opponent filed a Notice of Intention to Oppose the Application followed by its Statement of Grounds and Particulars (‘SGP’) on 11 July 2022. The Applicant filed a Notice of Intention to Defend the opposition on 16 August 2022.
Thereafter the parties filed evidence in accordance with the Regulations. The Opponent filed the following evidence in support:

Declaration of Keren Ludski, Chief Executive Officer of the Opponent, made on 16 November 2022, with Exhibits KL-1 to KL-28 (‘Ludski 1’).
Declaration of Jessica Murphy, Registered Trade Mark Attorney at Davis Collison Cave for the Opponent, made on 18 November 2022, with Exhibits JM-1 to JM-5.

The Applicant filed the following evidence in answer:

Declaration of John Mackinnon Thompson, Board Chairman and Chief Executive Officer of the Applicant, made on 22 February 2023, with Annexures JMT-1 to JMT-4.
Declaration of Isabelle Charlotte Tye, Associate Solicitor at Richards & Evans Commercial Lawyers for the Applicant, made on 22 February 2023, with Annexures ICT-1 to ICT-4.

The Opponent filed the following evidence in reply:

Declaration of Keren Ludski, made on 21 April 2023, with Exhibits KL-1 to KL-2.
Declaration of Jessica Murphy, made on 21 April 2023, with Exhibits JM-1 to JM-4.

Once time for filing evidence had ended both parties were given an opportunity to either request an oral hearing or a hearing by way of written submissions. Both parties requested to be heard by way of videoconference. As a delegate of the Registrar of Trade Marks I heard the matter by videoconference on 1 July 2024. Edward Heerey of Kings Counsel instructed by Ian Drew and Jessica Murphy of Davies Collison Cave appeared on behalf of the Opponent. Luke Merrick of Senior Counsel instructed by Tony Middleton of Counsel, and Isabelle Tye and Greg Tye of Richards & Evans Commercial Lawyers appeared on behalf of the Applicant. The parties’ oral submissions were supported by written submissions filed prior to the hearing.

Grounds of Opposition, Relevant Date and Onus

In the SGP the Opponent nominated grounds of opposition under ss 42(b), 44, 58, 60 and 62A. The Opponent did not press the ground of opposition under s 58 and I consider it abandoned.
The date at which the rights of the parties are to be determined is the filing date of 9 November 2021 (‘Relevant Date’) which is also the priority date for the purposes of ss 44 and 60.
The Opponent bears the onus of establishing at least one of the grounds of opposition.[2] The standard of proof is the ordinary civil standard of the balance of probabilities.[3]
[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
[3] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

Preliminary Issue

At the hearing and in its written submissions the Applicant requested to amend its specification of services in class 36 to confine it to charitable fundraising with respect to the awareness, treatment and research into bowel cancer (‘Applicant’s Services’). As such I have considered the opposition to the application as amended.

Discussion

The Opponent

The Opponent is a charitable organisation founded in 1977 with the objectives of raising funds to fund research, deliver prevention messaging and advocacy and build awareness of pregnancy and infant loss whilst delivering bereavement support programs to those impacted by the death of a baby or child.

The Applicant

The Applicant is a charitable fund-raising and awareness organisation which is dedicated to reducing the prevalence of cancer in the community and to assisting those in the community who are already affected by cancer.

Section 44

In respect of this matter s 44 relevantly provides:
44 Identical etc. trade marks
…
(2) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:
(a) it is substantially identical with, or deceptively similar to:
(i) a trade mark registered by another person in respect of similar services or closely related goods; or
(ii) a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and
(b) the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.
(3) If the Registrar in either case is satisfied:
(a) that there has been honest concurrent use of the 2 trade marks; or
(b) that, because of other circumstances, it is proper to do so;
the Registrar may accept the application for the registration of the applicant’s trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant’s trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area.
(4) If the Registrar in either case is satisfied that the applicant, or the applicant and the predecessor in title of the applicant, have continuously used the applicant’s trade mark for a period:
(a) beginning before the priority date for the registration of the other trade mark in respect of:
(i) the similar goods or closely related services; or
(ii) the similar services or closely related goods; and
(b) ending on the priority date for the registration of the applicant’s trade mark;
the Registrar may not reject the application because of the existence of the other trade mark.

To satisfy the s 44 ground of opposition the Opponent must establish that the Trade Mark is substantially identical with, or deceptively similar to, another trade mark/s with an earlier priority date, in the name of a person other than the Applicant, and in respect of similar services or closely related goods.
In the SGP the Opponent particularised the ground of opposition by reference to its trade marks listed at Annexure 1. For the purposes of s 44 the Opponent, in its written and oral submissions, focused on three of its registered trade marks: 530371 (‘371’); 1022837 (‘837’); and 1276630 (‘630’).
From the information set out in the SGP and verified on the Register of Trade Marks it is evident that the Opponent’s trade marks 371, 837 and 630 are held in a name other than that of the Applicant, have a priority date earlier than the Relevant Date, and are in respect of charitable fund-raising services or fund-raising services in class 36 which are the same or similar to the Applicant’s Services.
I now turn to consider whether any of 371, 837 and 630 are substantially identical or deceptively similar to the Trade Mark.
The Opponent does not assert that the Trade Mark is substantially identical to any of 371, 837 and 630. For the sake of completeness, the test for substantial identity requires that the trade marks are considered side by side while having regard to the essential features of the trade marks. Where a total impression of resemblance emerges from the comparison, the trade marks will be considered substantially identical. [4] For the purposes of comparison, I have reproduced the respective trade marks below:

[4] The Shell Company Australia Ltd v Esso Standard Oil (Australia) Limited (1963) 109 CLR 407, 414 (Windeyer J) (‘Shell’).

Opponent’s trade marks

Trade Mark

371

NOSE DAY
RED NOSE DAY
WHITE NOSE DAY
BLACK NOSE DAY
BLUE NOSE DAY
YELLOW NOSE DAY
GREEN NOSE DAY

Brown Nose Month

837

RED NOSE DAY

630

RED NOSE

On a side by side comparison I find there are clear differences which mean that a total impression of dissimilarity emerges from a comparison of 371, 837 and 630 and the Trade Mark. While all the trade marks share the word NOSE, the presence of the word BROWN and MONTH in the Trade Mark provides a significantly different visual impression. For these reasons, I find that the Trade Mark is not substantially identical to any of 371, 837 and 630. The total impression emerging from a side by side comparison is not one of similarity.
I have found that the respective trade marks are not substantially identical. The remaining question is whether the Trade Mark is deceptive similar to any of 371, 837 and 630.
The expression ‘deceptively similar’ is defined by s 10:
10 Definition of deceptively similar
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
The principal authority for guidance in determining whether trade marks are deceptively similar also comes from the judgment of Windeyer J in Shell:
On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff’s mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant’s [trade mark].[5]
[5] Ibid [13].
The High Court in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd[6] conveniently stated the relevant principles, which may be summarised as follows:
[6] [2023] HCA 8 (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (‘Self Care’).

(a)the resemblance between the two marks must be the cause of the likely deception or confusion;[7]
[7] Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd [2022] FCAFC 157, [69] (Yates, Abraham and Rofe JJ) (‘Swancom’).
(b)in the trade mark comparison, the marks must be judged as a whole taking into account both their look and their sound;[8]
[8] Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536, 538 (Dixon, Williams and Kitto JJ).
(c)the marks should not be compared side by side;[9]
[9] Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641, 658 (Dixon and McTiernan JJ) (‘Australian Woollen Mills’).
(d)the effect of spoken description must be considered; if a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods (or services), then similarities both of sound and of meaning may play an important part;[10]
[10] Ibid.
(e)the focus is upon the effect or impression produced on the mind of potential customers of the goods (or services) in relation to which the two marks are used and in the case of the registered mark, allowing for ‘imperfect recollection’;[11]
[11] Ibid.
(f)the notional buyer is a person with no knowledge about any actual use of the registered mark, the actual business of the owner of the registered mark, the goods the owner produces, any acquired distinctiveness from the use of the marks prior to filing, or any reputation associated with the registered mark;[12]
[12] C A Henschke & Co v Rosemount Estates Pty Ltd (2000) 52 IPR 42, 62 [43] (Ryan, Branson and Lehane JJ) (‘Henschke’).
(g)the correct approach is to compare the impression (allowing for imperfect recollection) that the notional buyer would have of the registered mark (as notionally used on all of the goods or services covered by the registration), with the impression that the notional buyer would have of notional and normal fair use of the opposed mark;[13]
(h)“deceived” implies the creation of an incorrect belief or mental impression; “causing confusion” may merely involve “perplexing or mixing up the minds” of potential customers; [14]

the usual manner in which ordinary people behave must be the test of what confusion or deception may be expected, having regard to the character of the customers who would be likely to buy the goods in issue;[15]

(j)it is not necessary to establish actual probability of deception or confusion, but a mere possibility of confusion is not enough. There must a real, tangible danger of deception or confusion occurring. It is enough if the notional buyer would entertain a reasonable doubt as to whether, due to the resemblance between the marks, the two products come from the same source. Put another way, there must be “a real likelihood that some people will wonder or be left in doubt about whether the two sets of products ... come from the same source”;[16]
(k)evidence of actual confusion is of great weight, but not essential, and lack of such evidence may also be relevant;[17] and
(l)any intention to deceive or cause confusion may be a relevant consideration but is not required.[18]
[13] Shell, (n 4), 415.
[14] Coca-Cola Company v All-Fect Distributors Ltd (1999) 96 FCR 107, 122 [39] (Black CJ, Sundberg and Finkelstein JJ) quoting Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd [1978] 2 NZLR 50, 62 (Richardson J).
[15] Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45, 79 [83] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[16] Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020, [50(ii)] (‘Woolworths’) (French J) restating principles from Southern Cross Refrigerating v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 594-595 (Kitto J).
[17] Australian Woollen Mills (n 9).
[18] Hashtag Burgers Pty Ltd v In-N-Out Burgers Inc (2020) 385 ALR 514, 533 [67] (Nicholas, Yates and Burley JJ) citing Australian Woollen Mills (n 9), 657.

Furthermore, the Court, in the same case, noted the following:[19]
In considering the likelihood of confusion or deception, "the court is not looking to the totality of the conduct of the defendant in the same way as in a passing off suit"[20]. In addition to the degree of similarity between the marks, the assessment takes account of the effect of that similarity considered in relation to the alleged infringer's actual use of the mark[21], as well as the circumstances of the goods, the character of the likely customers, and the market covered by the monopoly attached to the registered trade mark[22]. Consideration of the context of those surrounding circumstances does not "open the door" for examination of the actual use of the registered mark, or, as will be explained, any consideration of the reputation associated with the mark.[23]
[19] Self Care (n 6), [33].
[20] New South Wales Dairy Corporation v Murray-Goulburn Co‑operative Co Ltd (1989) 86 ALR 549, 589 (emphasis added), approved in Henschke (n 12), [44], Hashtag Burgers (2020) 385 ALR 514, 532 [64], Combe International Ltd v Dr August Wolff GmbH & Co KG Arzneimittel (2021) 157 IPR 230, 238 [27], PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd (2021) 285 FCR 598, 622 [97] (see also 626 [111]) and Swancom (n 7), 56 [73].
[21] Act, s 68.
[22] New South Wales Dairy [1989] FCA 124; (1989) 86 ALR 549 at 589.
[23] Swancom (2022) 168 IPR 42 at 59 [89]. See also Henschke (2000) 52 IPR 42 at 62 [44].
The Opponent asserts that the trade marks: are for identical services; the word NOSE on its own has no known connotation associated with charitable fundraising; there is no connotation associated with the combination of a colour and charitable fundraising; the Opponent’s series trade mark 371 covers NOSE DAY in combination with the colours red, white, blue, yellow and green. It also asserts that the material particulars are NOSE DAY and it follows that the actual colour associated with NOSE DAY is not a material particular; and the use of the word MONTH in BROWN NOSE MONTH is of minimal impact.
The Opponent submits that the above is consistent with National Cancer Foundation Limited (‘Revocation Decision’)[24] in which BROWN NOSE DAY (emphasis added) was found to be deceptively similar to the Opponent’s trade marks 490285, 371, 837 and 909947. The Opponent adds that while it is accepted that the Revocation Decision pertains to BROWN NOSE DAY and not BROWN NOSE MONTH, given that day and month are interchangeable descriptive elements, the reasoning adopted is equally applicable.
[24] 2023 ATMO 28 (Hearing Officer Butson).
In response the Applicant submits that none of 371, 837 and 630 is for the word NOSE alone, the colour and timeframe are important aspects of the trade marks under comparison, and the trade marks look and sound different and convey different concepts.
In the Revocation Decision Hearing Officer Butson found that the Opponent’s earlier trade marks 490285, 371, 909947 and 837 share a word component which is structured as the name of a colour plus NOSE DAY, or simply NOSE DAY solus. Hearing Officer Butson considered that the Opponent’s earlier trade marks form a ‘family’ of trade marks, following the aforementioned structure, and that as the impugned trade mark follows this same formula, albeit with differing colour, there was a strong likelihood of confusion occurring.
Whilst I acknowledge the Opponent’s earlier trade marks 371 and 837 may form a ‘family’ of trade marks following the aforementioned structure, the trade marks must be considered in their entirety[25] and I consider that the Trade Mark in its entirety has some meaningful and memorable variations. None of the Opponent’s earlier trade marks 371, 837 and 630 contain the word MONTH and the colour BROWN. It is these compounding differences which satisfy me that the Opponent’s trade marks are not deceptively similar to the Trade Mark.
[25] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [92] (Keane CJ, Stone and Jagot JJ).
The likely impression of the words BROWN NOSE MONTH in relation to the Applicant’s Services is that of a month dedicated to fundraising events. This is in contrast to the Opponent’s earlier trade marks 371 and 837 which contain the word DAY and would be read as a fundraising event or campaign taking place on one day with the aim of bringing communities together to raise awareness for a specific cause and drive donations.
In determining whether there is a likelihood of deception or confusion I must consider all the surrounding circumstances including the circumstances in which the services are offered and the character of the probable acquirer of the services.[26] The services in this matter are broadly speaking charitable fundraising services which are directed at the public at large. I consider that charitable organisations engaged in fundraising activities would need to be competitive with rivals and rely on carefully formulated promotional programs. As a consequence, consumers would be typically engaged with a relatively high degree of enthusiasm, care and attention about the organisation they deal with. In this regard, I find it more probable than not that consumers of these services would not be contextually confused between the fundraising offerings of the Opponent and the Applicant.
[26] Woolworths (n 16), [50].

Assessing the trademarks in their entirety, and the likely impression on the mind of the relevant consumer, I am not satisfied that the Trade Mark is deceptively similar to the Opponent’s earlier trade marks 371, 837 and 630. If follows that I am not satisfied the Trade mark is deceptively similar to the remaining trade marks identified in the SGP, given they contain additional features which further differentiate them from the Trade Mark.
The ground of opposition under s 44 has not been established.

Section 60

Section 60 provides:
60 Trade mark similar to trade mark that has acquired a reputation in Australia
The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:
(a) another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and
(b) because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.

In the SGP the Opponent particularises the s 60 ground of opposition as follows:

…the Opponent has used and promoted the trade mark RED NOSE DAY (and RED NOSE formative trade marks) in relation to the Opponent's Goods and Services in Australia and elsewhere since 1988 such that its marks have developed a reputation well in advance of the date of filing of the Application. Owing to that reputation, the use of the Opposed Mark for the services specified in the Application would be likely to deceive or cause confusion.

To satisfy s 60, the Opponent must establish that the trade marks upon which it relies had a reputation in Australia at the priority date of the Trade Mark. The Opponent must then establish that because of that reputation, use of the Trade Mark would be likely to deceive or cause confusion.
In McCormick & Co Inc v McCormick, Kenny J asked what is intended by the word ‘reputation’ in s 60. Her Honour consulted the Macquarie Dictionary and on the basis of the definition provided concluded that it was ‘the recognition of the [trade mark] by the public generally’12F9F[27] and quoted with approval the following words of Lockhart J in Re ConAgra Inc v McCain Foods (Aust) Pty Ltd:
[R]eputation within the jurisdiction may be proved by a variety of means including advertisements on television, or radio or in magazines and newspapers within the forum. It may be established by showing constant travel of people between other countries and the forum, and that people within the forum (whether residents there or persons simply visiting there from other countries) are exposed to the goods of the overseas owner…[28]
[27] [2000] FCA 1335, [81].
[28] [1992] FCA 159, [118].
Kenny J also referred to the Hugo Boss decision, where the Registrar’s delegate observed:
[I]t is true that the assessment of the reputation of a trade mark goes far beyond mere examination of sale or turnover of goods sold under the trade mark and contemplation of the advertising and promotional figures.
As regards a trade mark, its reputation derives both from the quantum of sales under that mark and also its esteem, or image, projected by that trade mark. The quantum sale, advertising and promotion contributes to the ‘recognition’ component of the trade mark’s reputation. The credit, image and values projected by a trade mark attaches to the ‘esteem’ component of the reputation as do the public events and other trader’s marks with which [the] owner of the trade marks in question chooses to associate the trade marks via sponsorship, cross-promotions, ‘contra deals’ and so forth.
It follows that a trade mark used in relation to goods with comparatively low sales may have a high and strong reputation by virtue of the high credit or esteem in which it is held, or, conversely, that a trade mark which has very high sale may have a strong reputation notwithstanding the lack of esteem that attaches to it. The particular popular images, or sets of values, that attach to the trade mark are also, therefore, important parts of the reputation of the trade mark and may be as strong an association of the trade marks with the goods or services themselves.14F11F[29]
[29] Hugo Boss AG v Jackson International Trading Co Kurt D Bruhl Gesellschaft MbH & Co KG (1999) 47 IPR 423, 436.
What constitutes a significant or substantial number of persons in the relevant market must be considered. Heerey J in Le Cordon Bleu BV v Cordon Bleu International Ltee provided some guidance:
What is “significant” or “substantial” will depend on the nature of the goods or services in question. For some highly specialised products, awareness among a few thousand persons, or even less, might be sufficient.F12F[30]
[30] [2000] FCA 1587, [91], (albeit in relation to paragraph 28(a) of the now superseded Trade Marks Act 1955 (Cth)), (emphasis in original).
Each mark is separate when considering the operation of s 60 and it is appropriate to consider the use of which they have been put.
Turning to the Opponent evidence in this matter, in Ludski 1, Ms Ludski states that the Opponent has held a RED NOSE DAY throughout Australia every year since 1988.
Exhibit KL-24 to Ludski 1 comprises the Opponent’s annual revenue figures for the years 2013 to 2021 and sales figures from merchandise for the years 2014 to 2022.
The Opponent has promoted its RED NOSE DAY and RED NOSE goods and services across numerous mediums including on the packaging of the goods, via radio, television, the internet, print media and social media. Examples of these promotional activities are exhibited in Ludski 1. In respect to online promotion, Ludski 1 includes exhibits of the Opponent’s websites and as well as metrics for monthly visits and hits, country visits and hits and website traffic sources to for the period 2020 to 2021.
The Opponent’s RED NOSE DAY and RED NOSE goods and services are also promoted by celebrity and sporting endorsements, partnerships with other businesses, charities and ambassadors such as The Wiggles. The Opponent collaborates with organisations including the Australian Competition and Consumer Commission, Standards Australia and Children’s Hospitals nationally and is involved in sponsoring and attending conferences relevant to its purpose including sharing hosting duties with the Australian and New Zealand Stillbirth Association.
In my assessment of the evidence, I am satisfied that that the RED NOSE DAY and RED NOSE trade marks had before the Relevant Date, acquired a significant reputation in Australia in relation to its goods and services connected with sudden infant death syndrome, stillbirths, neonatal deaths, death of a child and fatal sleeping accidents.
It is not sufficient that the Opponent merely establishes that its RED NOSE DAY and RED NOSE trade marks have a reputation, I must also be satisfied that because of that reputation the use of the Trade Mark would be likely to deceive or cause confusion. There is no requirement that the trade marks upon which the Opponent relies are deceptively similar to the Trade Mark, nor that the services of the parties are similar. Nonetheless, resemblance between the parties’ trade marks remains a relevant factor, as noted in Rogers Seller & Myhill Pty Ltd v Reece Pty Ltd12F wherein Hearing Officer Lyons said:
Confusion cannot arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent’s trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.
What can be said then of section 60 as we now find it is that it comprehends that the trade marks under comparison might be quite dissimilar, and yet, taken in combination with the repute of the opponent’s trade mark (and possibly other factors), deception or confusion is still more likely than not. Put another way, section 60 now contemplates that an opponent may prevail because of the reputation in the mark on which it relies notwithstanding that the trade marks under comparison may even be quite dissimilar.^[31]
[31] [2010] ATMO 5, [39]-[40].

In this case the respective trade marks share the word NOSE, however I consider that they are aurally, visually and conceptually different.
I find that the services are similar in that they are directed to both charity and the medical field, however the services are confined to notably different areas of focus therein. The Opponent’s reputation is in goods and services in connection with sudden infant death syndrome, stillbirths, neonatal deaths, death of a child and fatal sleeping accidents. In comparison the Applicant’s services are directed to activities in relation to bowl cancer.
Bearing in mind the limited focus area of any reputation and the differences between the Trade Mark and the Opponent’s RED NOSE DAY and RED NOSE trade marks, I would not be satisfied that the fact of reputation in RED NOSE DAY and/or RED NOSE would mean that use of the Trade Mark would be likely to deceive or cause confusion.
The ground of opposition under s 60 has not been established.

Section 42(b)

Section 42(b) provides:
42 Trade mark scandalous or its use contrary to law
An application for the registration of a trade mark must be rejected if:
…
(b) its use would be contrary to law.

In the SGP the Opponent particularises the s 42(b) ground of opposition as follows:
The Opponent is a well-known charitable organisation which has, inter alia, the objectives of raising funds to fund research, deliver prevention messaging and advocacy and build awareness of pregnancy and infant loss whilst delivering bereavement support programs to those impacted by the death of a baby or child.
The Opponent has used and promoted the trade mark RED NOSE DAY, including various stylisation/logos of the mark and/or RED NOSE formative marks (RED NOSE Marks) since as early as 1988 in Australia and elsewhere, in connection with its broad range of activities including fundraising, conducting research, providing education programs and supporting bereaved families across Australia and a wide range of goods and services which are offered under the RED NOSE Marks or in respect of which the RED NOSE Marks are used under licence. These goods and services include baby care products, foodstuffs for babies, sanitary products, medical apparatus and instruments, printed matter, instructional and teaching materials, educational apparatus, bedding, furniture, food products, training services, educational services, entertainment services, counselling services (among other goods/services) (Opponent's Goods and Services).
As at the filing date of the Application on 9 November 2021 (the Priority Date), the RED NOSE Marks had a reputation. Owing to that reputation, use of the Opposed Trade Mark by the Applicant in relation to the claimed services is likely to mislead or deceive consumers that the services provided under the Opposed Trade Mark are somehow associated or affiliated with the Opponent in breach of sections 18 and 29 of the Australian Consumer Law 2010 (Cth) and constitute passing off at common law.
The case law on s 42(b) requires the Opponent to show that use of the Trade Mark would be, rather than could or might be, contrary to law.[32] As observed by Rangiah J in Primary Health Care Limited v Commonwealth of Australia:
It is not enough for a party opposing registration to show that s 18 of the ACL [Australian Consumer Law 2010] or s 52 of the TPA [Trade Practices Act 1974] might be contravened. The opponent must prove, on the balance of probabilities, that the provision would be contravened by use of the trade mark.[33]
[32] Advantage Rent a Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683, [28] (Madgwick J).
[33] [2017] FCAFC 174, [411].
Section 18 of the Australian Consumer Law[34] (‘ACL’) is concerned with misleading or deceptive conduct, while s 29 of the ACL is concerned with false and misleading representations. Case law has made it plain that s 18 of the ACL imposes a more stringent test than that for deception or confusion under s 60.[35] I have found that the Opponent has failed to establish a ground of opposition under s 60. Consequently, I find that the Opponent has also failed to establish that use of the Trade Mark would be contrary to s 18 of the ACL.
[34] Competition and Consumer Act 2010 (Cth), sch 2.
[35] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198. This case was decided under the superseded s 52 Trade Practices Act 1974 (Cth) (‘TPA’) the equivalent provision to the current s 18 of the ACL.
In relation to s 29 of the ACL it has been held that where a trade mark does not offend s 18 of the ACL, neither will it offend s 29 of the ACL[36] and nor will it constitutepassing off.[37]
[36] In Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104, Beaumont J considered – in connection with the superseded TPA - that ‘the Court’s conclusion on section 52 would necessarily carry with it a conclusion on section 53 (c) and (d).’ Sections 53(c)-(d) of the TPA are the equivalent provisions to ss 29(1)(g)-(h) of the ACL.
[37] Re Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506, [40] (Hill J), wherein failure to succeed under ss 52 or 53 of the TPA ‘will invariably mean that proceedings for passing off would likewise fail’.
The Opponent has not established the ground of opposition under s 42(b).

Section 62A

Section 62A provides:
62A Application made in bad faith
The registration of a trade mark may be opposed on the ground that the application was made in bad faith.

In the SGP the Opponent particularises the s 62A ground of opposition as follows:

…the Opponent enjoys a substantial reputation in Australia in its RED NOSE Marks and has contacted the Applicant to raise concerns in relation to an earlier application filed by the Applicant. That communication clearly set out the Opponent's reputation. Accordingly, the Applicant was and is on notice of the Opponent's concerns in relation to its proposed branding and the extent of the Opponent's reputation.

The Opponent sought to register the Trade Mark to take advantage of the reputation in the RED NOSE Marks and is fully cognisant of the Opponents' concerns. The deliberate and intentional attempt to trade on the reputation of Opponent falls short of the accepted standards of commercial behaviour and, accordingly, the Application was filed in bad faith.

The Explanatory Memorandum to the Trade Marks Amendment Bill 2006 (Cth) provided some illustrations of applications made in bad faith:
·     persons who monitor new property developments, register the name of new developments as trade marks for a number of services and then threaten the property developers with trade mark infringement proceedings unless the developers licence or buy the trade marks;
·     persons who have a history of applying for trade marks that are deliberate misspellings of other registered trade marks; and
·     persons who identify trade marks used overseas but with no Australian use as yet who then apply to register the trade marks in Australia for the express purpose of selling them to the overseas owners.
These illustrations are not exhaustive. In DC Comics v Cheqout Pty Ltd, Bennett J observed that all of the circumstances surrounding the application to register a trade mark are relevant.[38] Moreover, conduct after the priority date can be used to shed light on the Applicant’s subjective intent at the filing date.[39]
[38] [2013] FCA 478, [62].
[39] Ibid, [71].
The test for bad faith incorporates subjective and objective elements. That is, I must consider what the Applicant actually knew at the filing date, and then consider whether, armed with that knowledge, its decision to apply to register the Trade Mark would be considered to be in bad faith by persons who adopt proper standards of behaviour in business. In Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) (‘Fry’)[40] Dodds-Streeton J made the following comments, quoting from Harrisons’s Trade Mark Application:
Clearly the court, when considering bad faith, cannot apply a purely subjective test, called by Lord Hutton “the Robin Hood test”. The dishonest person or one with low standards cannot be permitted to obtain trade mark registrations in circumstances where a person abiding by a reasonable standard would not. The registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading. Registration is not provided to help those with low moral standards.
… The words “bad faith” suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[41]
[40] [2012] FCA 81.
[41] Harrison’s Trade Mark Application [2004] EWCA Civ 1028.
Her Honour continued later in the same decision:
The formulation in United Kingdom authority of bad faith as falling short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in a particular area is, in my view, an apt touchstone. An overly literal application may, however, tend to negate the relevance attributed to the applicant’s mental state in the combined test preferred in Harrison.
Further, in my view, mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice, as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand, or unconscientious character.[42]
[42] Fry (n 31) [147], [165]-[166].
In the present matter, the Opponent submits that the Applicant admits that it, through Mr Thompson, was aware of the Opponent’s RED NOSE trade marks prior to filing the Trade Mark. There is no evidence that the Applicant sought legal advice in relation to the Application at any time. Instead, the Applicant appears to have relied only on Mr Thompson’s personal view that there was no risk of confusion between the trade marks. The Opponent asserts that this alone gives rise to an inference that the Applicant sought to register the Trade Mark and BROWN NOSE DAY in an attempt to trade off the significant reputation the Opponent has acquired as a well-known, successful and respectable charitable organisation, particularly in the medical field.
The Opponent submits that this inference is reinforced by the Applicant’s conduct in seeking to register BLACK NOSE MONTH[43] and BLACK NOSE DAY[44] and failing to explain the basis for that conduct in its evidence.
[43] Lapsed trade mark application 2226686.
[44] Lapsed trade mark application 2266386.
The onus is on the Opponent to establish that the act of filing the Application was in bad faith. While the standard of proof remains the same, given the serious nature of the allegation, cogent evidence is required in order to prove it.[45]
[45] Hard Coffee Pty Ltd v Hard Coffee Main Beach Pty Ltd [2009] ATMO 26, [12] (Hearing Officer Nancarrow).
Turning to the factors raised by the Opponent, I am not satisfied that the Applicant’s conduct here necessarily falls short of the standards of reasonable commercial behaviour as ‘mere knowledge before the relevant date of another person’s trade marks, without more, does not in itself constitute the basis for a finding of bad faith’.[46] I have previously addressed the reputation in the Opponent’s RED NOSE trade marks in Australia and based on the evidence before me, I cannot conclude that the decision by the Applicant to apply and seek to register the Trade Mark for its chosen services was a decision to take advantage of the reputation in the Opponent’s RED NOSE trade marks.
[46] 1872 Holdings VOF v Havana Club Holding SA [2017] ATMO 12, [64] (Hearing Officer Thompson).

On balance I am not satisfied that the filing of the Application in the circumstances existing at the Relevant Date was conduct that constitutes bad faith.
The Opponent has not established the ground of opposition under s 62A

Decision

Section 55 provides:
55 Decision
(1) Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:
(a) to refuse to register the trade mark; or
(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;
having regard to the extent (if any) to which any ground on which the application was opposed has been established.
The Opponent has not established a ground of opposition in relation to the Applicant’s Services. Accordingly, I decide that trade mark number 2226685 may proceed to registration one month from the date of this decision. If the Registrar is served with a notice of appeal, I direct that the disposition of the Application should be in accordance with the Court’s order or direction.

Costs

Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Opponent under s 221 in line with Schedule 8 of the Regulations.

Louise Tuohy

Hearing Officer

Delegate of the Registrar of Trade Marks

27 August 2024

Annexure 1

Trade mark number, filing date, trade mark

Specification

490285

30 June 1988

Class 36: Charitable services and fund raising services included in this class

530371

8 March 1990

NOSE DAY
RED NOSE DAY
WHITE NOSE DAY
BLACK NOSE DAY
BLUE NOSE DAY
YELLOW NOSE DAY
GREEN NOSE DAY

Class 36: Fund raising

756801

10 March 1998

RED NOSE DAY

Class 9: Storage medium for sounds and/or images, including compact discs, video tapes, audio tapes; pre-recorded compact discs, pre-recorded audio and video tapes

Class 16: Printed matter, stationery, books and other publications, posters, photographs, playing cards

Class 25: Clothing, footwear, headgear

Class 28: Toys, games and other playthings

Class 41: Education and entertainment services, being services provided to assist in raising awareness in relation to infant health and mortality including Sudden Infant Death Syndrome

909947

18 April 2002

Class 16: Printed matter, stationery, books and other publications, posters, photographs; instructional and teaching material; adhesives; paper, cardboard and goods made from these materials

Class 20: Furniture, including cots, bassinets, cradles, high chairs, play pens, mobiles; beds, bedding, mattresses; pillows; chests for toys; mirrors; picture frames; goods of wood, plastic, cork, cane not included in other classes

Class 24: Blankets

Class 25: Clothing, footwear, headgear

Class 28: Toys, games and other playthings; sporting equipment; playing cards

Class 30: Confectionery, lollies; chocolate; ices

Class 35: Retail and wholesale services for the sale of storage medium for sounds and/or images, including compact discs, video tapes, audio tapes, pre-recorded compact discs, pre-recorded audio and video tapes, printed matter, stationery, books and other publications, posters, photographs, playing cards, instructional and teaching material, adhesives; paper, cardboard and goods made from these materials, clothing, footwear, headgear, toys, games and other playthings, sporting equipment, confectionery, lollies, chocolate, ices, furniture, including cots, bassinets, cradles, high chairs, play pens, mobiles, beds, bedding and blankets, mattresses, pillows, chests for toys, mirrors, picture frames, goods of wood, plastic, cork, cane not included in other classes

Class 36: Charitable fund raising services

Class 41: Education and entertainment services including services provided to assist in raising awareness in relation to infant health and mortality including Sudden Infant Death Syndrome

1022837

29 September 2004

RED NOSE DAY

Class 36: Financial services; distribution of funds; charitable fund-raising services

Class 45: Counselling services; grief counselling, bereavement services

1276629

10 December 2008

RED NOSE

Class 25: Clothing, footwear, headgear

1276630

10 December 2008

RED NOSE

Class 9: Life saving and teaching apparatus and instruments; cinematography apparatus and instruments; computer hardware, firmware and software; storage medium for sounds and/or images, including compact discs, DVDs video tapes, audio tapes; pre-recorded compact discs, DVDs, pre-recorded audio and video tapes; audio and visual equipment

Class 16: Paper goods; printed matter, stationery, books and other publications, posters, photographs, office requisites; pamphlets; brochures; promotional materials of paper

Class 28: Toys, games and other playthings; gymnastic and sporting articles; decorations for Christmas trees; synthetic Christmas trees; Christmas tree ornaments; sporting goods; playing cards; none being novelty noses

Class 35: Retail, wholesale and online selling services including in relation to the sale of storage medium for sounds and/or images, including compact discs, video tapes, audio tapes, pre-recorded compact discs, pre-recorded audio and video tapes, printed matter, stationery, books and other publications, posters, photographs, playing cards, clothing, footwear, headgear, toys, games and other playthings; retail, wholesale and online selling in relation to fundraising for charitable organisations

Class 36: Financial services; distribution of funds; charitable fund-raising services; financial services offered in conjunction with or on behalf of charities

Class 41: Education, training and entertainment services including such services provided to assist in raising awareness in relation to infant health and mortality including Sudden Infant Death Syndrome and other children and infant diseases; sporting and cultural activities including in relation to raising awareness in relation to infant health and mortality including Sudden Infant Death Syndrome and other children and infant diseases

Class 45: Counselling services; grief counselling, bereavement services; personal and social services rendered by others to meet the needs of individuals; licensing of intellectual property; mediation services

1528114

27 November 2012

RED NOSE

Class 3: Baby bath preparations (non-medicated); baby body milks; baby lotions; baby oil; baby shampoo; non-medicated baby care products; wipes incorporating cleaning preparations; baby wipes; wipes for cleaning skin

Class 5: Medicated baby care products; babies' beverages; dietetic substances for babies; foodstuffs for babies; medicated preparations for the care of babies; milk powder for babies; sanitary products for babies; washes for teats (of babies bottles); impregnated antiseptic wipes; wipes for hygienic (medical) purposes; infants' foods; baby diapers and nappies; diapers and nappies; babies disposable diaper pants of cellulose; babies' disposable diaper pants of paper; nappies of cellulose for babies; nappies of paper for babies; disposable paper diapers; babies absorbent pants; babies napkins of textile; babies nappies (diapers) of textile; textile liners for babies (diapers); baby foods in this class

Class 10: Surgical, medical, dental and veterinary apparatus and instruments, artificial limbs, eyes and teeth; orthopaedic articles; suture materials; chiropractic apparatus and instruments including pressure rings, cushions, back chair cushions; medical mattresses, beds, bedding and pillows; pregnancy support pillows and mattresses (for therapeutic use), dummies for babies, maternity belts, mattresses for childbirth, nursing pillows; baby bottles, teething rings; parts, fittings and accessories for the aforesaid goods; baby dummies; baby teething rings; covers for baby feeding bottles; dummies (baby soothers); babies' bottles; nipples for babies feeding bottles; teats; apparatus for the treatment of babies; non-spill medicine spoons for infants

Class 11: Toilet seats; toilets; sanitary covers for baby bottle warmers; baby food warmers; babies' baths (parts of sanitary installations); sterilisers for babies' feeding bottles

Class 12: Baby carriages; covers for baby carriages; babies' strollers; safety seats for babies for use in vehicles; wheeled transporters for babies

Class 16: Babies' bibs of paper; paper wipes; wipes made of tissue (other than impregnated or for medical use); paper bibs; paper goods; printed matter, stationery, books and other publications, posters, photographs, office requisites; pamphlets; brochures; promotional materials of paper

Class 18: Bags and Baby carriers (slings or harnesses); baby slings; pouch baby carriers; carrying bags (other than disposable carrier bags)

Class 20: Beds, pillows, mattresses and bedding (except linen) in this class; furniture including office furniture; divans, couches, chairs, armchairs, settees, sofas; cushions, bolsters; beds and bedding for animals and household pets; mirrors, picture frames; decorative wall plaques; mobiles (decoration), sleeping bags, interior window blinds, decorative bead curtains; wind chimes; toy chests, infant walkers; seats; bassinets; cradles; cribs; booster seats; change tables for infants, play pens; nesting boxes; high chairs for babies; crib bumpers; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all these materials, or of plastics; furniture, beds, pillows, mattresses and bedding (except linen) for babies, children and infants; cot mattresses, cotton change pads, folding change pads, mats for infant playpens, vinyl change pads, bassinet mattresses, pregnancy support pillows, pregnancy support mattresses, nursing pillows, baby head support pillows; parts, fittings and accessories for the aforesaid goods in this class; baby changing mats in this class; baby nests in the nature of padded baby carriers; stands for baby baths; support pillows for use in baby seating; babies' baskets; babies' bouncing chairs; babies' cradles; chairs for babies; changing tables for babies; furniture for babies; high chairs for babies; playpens for babies; seats adapted for babies; support cushioning for use in car safety seats for babies; supports to hold babies in reclining or sitting positions; bedding for cots (other than bed linen); cots; travel cots; mats for infant playpens; nursery furniture for use by infants

Class 21: Baby baths (portable); babies' potties; brushes for cleaning babies' feeding bottles; cleaning wipes; dispensers for paper wipes (other than fixed); disposable cloths for wiping; infants' drinking cups (other than bottles); potties

Class 24: Linen including bed linen; bed covers, sheets, pillow slips; mattress and pillow protectors; blankets, coverlets, eiderdowns; bed linen for babies, children and infants; textiles and textile goods, not included in other classes; bed and table covers; textile mats, mattress protectors for cots and bassinets; overlays; comforters, quilts, bed spreads, bed linen, receiving blankets, cot blankets, sleeping sacks, curtains of textile or fabric; parts, fittings and accessories for the aforesaid goods

Class 25: Babies' bibs (other than of paper); babies' undergarments; clothing for babies; footwear for babies; waterproof babies' pants; articles of disposable underclothing; bibs, not of paper; infants' clothing

Class 29: Meat, fish, poultry and game; seafood; preserved, dried, cooked or processed fruits; preserved, dried, cooked or processed vegetables including vegetable mixes; canned fruit and canned vegetables, frozen fruit and frozen vegetables; stir fry vegetables; beans; baked beans; dairy products; drinks made from dairy products; soups, broths and broth concentrates, consommes and soup preparations; sweet spreads, jams, marmalade; savoury spreads, pickles, vegetable extract spreads; salads; fillings in this class; snack foods; prepared meals and constituents for meals; prepared meals including vegetable and carbohydrate mixes with or without sauces and/or flavourings; frozen prepared meals consisting of one or more of vegetables, meat, seafood with or without sauces and seasonings; prepared meals including dairy products or meat, poultry or seafood with or without sauces and/or flavourings; meat, chicken, seafood or vegetable stock; dips; microwaveable meals; tomato paste; edible oils and fats; eggs; nuts and nut products; all included in class 29

Class 30: Rice, pasta, noodles and couscous; cereals and cereal preparations; meals made predominantly from rice, pasta or noodles; rice cakes; rice crackers; tea, coffee, cocoa, coffee essence, coffee extracts, mixtures of coffee and chicory, chicory and chicory mixtures, all for use as substitutes for coffee; non-medicated confectionery; pastries, cakes, biscuits, crackers, crispbread, bread, bread sticks; ices, ice cream, ice cream products, frozen confections, frozen yoghurt; desserts including chilled desserts, canned desserts, mousses, sorbets; bread; pastry; fillings in this class; sweet spreads, honey, treacle, maple syrup; savoury spreads, yeast extract spreads, mustards, relishes; snack foods; prepared meals and constituents for meals; prepared meals in a can; chocolate; sauces, ketchup, tomato sauce, soy sauce, chilli sauce, oyster sauce; simmer sauces; stir fry sauces; sauces in a pouch; pizza, pizza bases; sauces and toppings for pizzas; sauces for pasta and rice; salad dressing; mayonnaise; dips; spices; seasonings, marinades, condiments; dessert toppings; flavourings (other than essential oils) for adding to food and/or beverages; salsa; prepared entrees and meals including spring rolls, curry puffs, dim sims, samosas, wontons, wonton skins; capers; cooking sauces; microwaveable meals; frozen prepared meals consisting predominantly of noodles or rice with or without sauces and seasoning; chilled desserts; pasta sauces made predominantly from goods in this class; all included in class 30

1638438

1 August 2014

RED NOSE KIDS CUTS

Class 36: Charitable fundraising services; information, advisory and consultancy services in relation to the aforementioned

Class 41: Entertainment services; kid's parties; party organisation services; information, advisory and consultancy services in relation to the aforementioned

Class 44: Hairdressing; beauty care; hairdressing salons; information, advisory and consultancy services in relation to the aforementioned

1638441

1 August 2014

Class 36: Charitable fundraising services; information, advisory and consultancy services in relation to the aforementioned

Class 41: Entertainment services; kid's parties; party organisation services; information, advisory and consultancy services in relation to the aforementioned

Class 44: Hairdressing; beauty care; hairdressing salons; information, advisory and consultancy services in relation to the aforementioned

1638445

1 August 2014

RED NOSE GOES GREEN

Class 36: Charitable fundraising services; charitable fundraising services in relation to the packaging and distribution of goods; information, advisory and consultancy services in relation to the aforementioned

Class 39: Collection, packaging and distribution of goods including for charitable purposes; packaging and distribution of goods; information, advisory and consultancy services in relation to the aforementioned

1638448

1 August 2014

1730666

27 October 2015

Class 11: Toilet seats; toilets; sanitary covers for baby bottle warmers; baby food warmers; babies' baths (parts of sanitary installations); sterilisers for babies' feeding bottles

Class 12: Baby carriages; covers for baby carriages; babies' strollers; safety seats for babies for use in vehicles; wheeled transporters for babies

Class 16: Paper goods; printed matter, stationery, books and other publications, posters, photographs, office requisites; pamphlets; brochures; promotional materials of paper

Class 18: Bags and Baby carriers (slings or harnesses); baby slings; pouch baby carriers; carrying bags (other than disposable carrier bags)

Class 25: Clothing, footwear, headgear; babies' bibs (other than of paper); babies' undergarments; clothing for babies; footwear for babies; waterproof babies' pants; articles of disposable underclothing; bibs, not of paper; infants' clothing

Class 36: Financial services; distribution of funds; charitable fund-raising services; financial services offered in conjunction with or on behalf of charities

1730667

27 October 2015

Class 11: Toilet seats; toilets; sanitary covers for baby bottle warmers; baby food warmers; babies' baths (parts of sanitary installations); sterilisers for babies' feeding bottles

Class 12: Baby carriages; covers for baby carriages; babies' strollers; safety seats for babies for use in vehicles; wheeled transporters for babies

Class 16: Paper goods; printed matter, stationery, books and other publications, posters, photographs, office requisites; pamphlets; brochures; promotional materials of paper

Class 18: Bags and Baby carriers (slings or harnesses); baby slings; pouch baby carriers; carrying bags (other than disposable carrier bags)

Class 36: Financial services; distribution of funds; charitable fund-raising services; financial services offered in conjunction with or on behalf of charities

[2024] ATMO 152

27 August 2024

Key Legal Topics

Areas of Law

Intellectual Property

Administrative Law

Legal Concepts

Appeal

Costs

Statutory Construction

Remedies

Opponent’s trade marks	Trade Mark
371 NOSE DAY RED NOSE DAY WHITE NOSE DAY BLACK NOSE DAY BLUE NOSE DAY YELLOW NOSE DAY GREEN NOSE DAY	Brown Nose Month
837 RED NOSE DAY
630 RED NOSE