Sports Technology Limited v Insight Health Pty Limited

This matter concerns an opposition by Sports Technology Limited to the registration of the trade mark VITAZONE, application number 804370, filed by Insight Health Pty Limited for 'health food bars' in class 30. The opposition was brought before a delegate of the Registrar of Trade Marks. Sports Technology Limited, a New Zealand company, alleged that Insight Health Pty Limited was not the owner of the trade mark, among other grounds. Insight Health Pty Limited did not file any evidence or written submissions in response to the opposition.

The delegate was required to determine several grounds of opposition, including whether the trade mark was scandalous or its use contrary to law (s.42), whether it was likely to deceive or cause confusion (s.43), whether the applicant was the owner of the trade mark (s.58), whether the applicant intended to use the trade mark (s.59), and whether the trade mark was similar to another trade mark that had acquired a reputation in Australia (s.60). The opponent relied on its prior use of the VITAZONE mark in New Zealand and an exclusive distribution agreement for Australia entered into with the applicant's director.

The delegate found that the opposition failed under sections 42, 43, 59, and 60. Specifically, there was no evidence of scandalous matter or use contrary to law, nor was there evidence that the mark was likely to deceive or cause confusion. The delegate also found that the opponent had not discharged the onus of proving that the applicant lacked the intention to use the trade mark, and that the evidence of prior use in Australia was insufficient to establish a reputation for the opponent's mark. However, the opposition succeeded under section 58. The delegate reasoned that the opponent's mark was substantially identical to the applicant's mark, the goods were the same kind, and the opponent's use of the mark in Australia, through sales to the applicant and marketing activities, predated the applicant's filing date.

Consequently, the delegate refused to register trade mark application number 804370.