The Boots Co PLC v Biovital Pty Ltd

The Boots Company PLC, the applicant, sought to register a trade mark for "NUROFEN" in relation to pharmaceutical goods. Biovital Pty Ltd, the opponent, opposed this registration. The hearing officer, Terry Williams, was tasked with determining whether the proposed trade mark was deceptively similar to any existing trade marks owned by the opponent.

The primary legal issue before the hearing officer was whether the proposed trade mark "NUROFEN" was deceptively similar to any of the opponent's existing trade marks for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). The hearing officer also considered, but did not need to decide, a ground of opposition based on section 60 of the Act.

The hearing officer concluded that the necessary element of deceptive similarity was not established. While the specific reasoning for this conclusion is not detailed in the provided text, it indicates that the hearing officer found no likelihood of deception or confusion among consumers. Consequently, the opposition under section 44 failed.

As the opposition under section 44 was unsuccessful, the hearing officer found it unnecessary to consider the section 60 ground, which also therefore failed. The application for registration of the trade mark "NUROFEN" was permitted to proceed unless a notice of appeal was served on the Registrar within one month of the decision. Costs were awarded against the opponent, limited to the scale.