Technogym SpA v Melaleuca Inc

This matter concerned an application by Technogym SpA for registration of a trade mark, opposed by Melaleuca Inc. The hearing was conducted before Iain Thompson, a delegate of the Registrar of Trade Marks. Melaleuca Inc., the opponent, did not appear at the hearing or file submissions. The evidence indicated that Melaleuca Inc. had used the trade mark THE WELLNESS COMPANY in Australia since 1996 in relation to exercise equipment, often as part of a compound mark. However, this trade mark had not been used in Australia prior to the priority date of Technogym SpA's application in relation to a range of other goods, including nutritionals, cosmetics, and cleaning products, nor in services directly related to those goods. Melaleuca Inc. also held a registered trade mark THE WELLNESS COMPANY for medical and exercise apparatus.

The primary legal issues before the delegate were whether the trade marks were deceptively similar, whether Melaleuca Inc.'s goods were closely related to Technogym SpA's services under section 44(2) of the relevant legislation, and whether the use of Technogym SpA's applied-for trade mark would deceive or confuse under section 60. These considerations were to be made in light of Melaleuca Inc.'s registered trade mark predating the opposed application and its arguable reputation in relation to exercise machines and related services.

The delegate noted that the logical starting point was to consider whether the goods were closely related to the services. Applying the principles from *Registrar of Trade Marks v Woolworths*, the delegate acknowledged that the determination of deceptive similarity and the closeness of the relationship between goods and services are intertwined. However, the delegate found that Melaleuca Inc. had not established its ground of opposition under section 58.

As no grounds of opposition were established, the delegate decided that Technogym SpA's trade mark application could proceed to registration one month from the date of the decision, unless an appeal was filed. The delegate also ordered costs against Melaleuca Inc. at the official scale.