Unilever PLC v Paraloma Holdings Pty Ltd

This decision concerns an opposition by Unilever PLC to the registration of the trade mark FLORA PLANT FOOD, application number 639483, by Paraloma Holdings Pty Ltd. The application was for "soluble liquid or powder plant food for soil or hydroponics." Unilever opposed the registration on various grounds under the *Trade Marks Act 1995* (Cth). The matter was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the applicant's trade mark should be rejected under section 44(1) of the Act, and whether the registration would be likely to deceive or cause confusion under section 60 of the Act. Section 44(1) requires rejection if the applicant's trade mark is substantially identical with or deceptively similar to a registered trade mark for similar goods or services, and the priority dates are such that the registered mark has priority. Section 60 concerns the reputation of an opponent's trade mark and whether the applicant's mark is likely to cause deception or confusion.

The delegate accepted that Unilever's registered trade marks containing the word FLORA were identical or deceptively similar to the applicant's mark. However, the delegate found that the goods were not of the same description for the purposes of section 44(1)(a)(ii), applying the tests of the nature of the goods, their uses, and trade channels. Regarding section 60, while acknowledging the strong reputation of Unilever's FLORA trade mark in relation to foodstuffs, the delegate found no reasonable basis for the public to assume a connection between Unilever and plant food. The delegate reasoned that the common understanding of the word "flora" relating to plants would lead a reasonable consumer to understand the applicant's mark in its literal sense, rather than inferring a connection to a food manufacturer.

Consequently, the delegate dismissed the opposition. The application was directed to proceed to registration without restriction, and costs were awarded to the applicant.