In a recent decision of the High Court of Australia, it has been clarified that trade mark infringement is to consider whether a notional buyer of product ‘would entertain reasonable doubt’ when considering if two products with similar branding originated from the same source.¹ More importantly, the decision considered the importance of reputation and concluded that it should not be taken into consideration when assessing deceptive similarly per section 120(1) of the Trade Marks Act 1995 (Cth).²
This decision concerns an opposition in accordance with section 52 of the Trade Marks Act 1995 (Cth),¹ brought by Ice Cream Group Australia Pty Ltd (Ice Cream Group) opposing the registration of the words ‘Dixie Cup’, and the logo. Ice Cream Group had filed the opposition and requested an oral hearing to supplement their evidence in support of the opposition.
The Federal Court decision in Brick Lane Brewing Co Pty Ltd v Torquay Beverage Co Pty Ltd  FCA 66¹ reviewed issues pertaining to deceptive similarity in product packaging and trade dress, and whether there was sufficient consumer recognition of Brick Lane Brewing Co Pty Ltd (Brick Lane) products sufficient for confusion or deception with the “Better Beer” product of Torquay Beverage Co Pty Ltd (Torquay).
The Federal Court of Australia granted an interlocutory injunction against Singtel Optus Pty Ltd (Optus) regarding the alleged infringement of the Trade Mark rights belonging to Boost Tel Pty Ltd (Boost). Th decision relied on the Trade Mark rights to grant the interlocutory injunction, which restrains Optus from advertising, promoting, and supplying their services using words associated with Boost.
Mad Dogg Athletics Inc v Colette McShane Pty Ltd¹ concerns an opposition by Mad Dogg Athletics in accordance with section 52 of the Trade Marks Act 1995 (Cth)² (‘the Act’) to registration of a Trade Mark in the name of Colette McShane.
In Watson as Trustee for the Watson Family Trust v Cosmetic Warriors Ltd,¹ it was held that the Appellant Mr Watson had demonstrated sufficient use of the disputed LUSH trade mark on the basis that he had conducted business and exercised personal control over the trade mark. This was in the context of a non-use removal application filed by Cosmetic Warriors Ltd alleging that Mr Watson had not sufficiently used the LUSH trade mark during the relevant period of Trade Mark use specified in the Trade Marks Act 1995 (Cth) (‘Trade Marks Act’)² in section 92(4)(b).³ The Federal Court considered whether the appellant discharged their duties arising from section 100(1)(c) if the Trade Marks Act.
In Karlsson v Griffith University¹ , the Federal Court of Australia held that section 124 of the Trade Marks Act 1995 (Cth)² provides a defence to infringement of a registered trade mark in circumstances where the user of an unregistered trade mark (that is deceptively similar or substantially identical to a registered trade mark) is entitled to the section 124 defence if the unregistered trade mark was continually used prior to the registration date of the registered trade mark.
In Ceramiche Caesar S.p.A v Caesarstone Ltd (2020),¹ the Full Federal Court considered the effect of an amendment and in particular, the effect an amendment excluding goods from a Trade Mark application has on an Applicant’s claim to “honest concurrent use.”² The Court also considered the connection between control required to be exercised by a registered Trade Mark Owner and their ability to rely on “authorised use.”³
In Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd  FCA 82¹, the Full Court found that the trade mark URBAN ALE lacked distinctiveness and was deceptively similar to the trade mark URBAN BREWING COMPANY, and on that basis was cancelled under section 88(1)(a) of the Trade Marks Act 1995 (Cth).²