CQ Skin Care Pty Ltd v Bio Creative Enterprises, Inc. [2025] ATMO 240 (17 November 2025)

The primary judge referred to the summary of the relevant principles concerning use "as a trade mark" in Nature's Blend Pty Ltd v Nestlé Australia Ltd [2010] FCAFC 117; (2010) 87 IPR 464 (Stone, Gordon and McKerracher JJ) which was a case in which the words "luscious Lips" were used on packaged confectionary which included lip shaped lollies. The Full Court summarised the relevant principles as follows at [19]:

1. Use as a trade mark is use of the mark as a "badge of origin", a sign used to distinguish goods dealt with in the course of trade by a person from goods so dealt with by someone else: Coca-Cola Co v All-Fect Distributors Ltd (1999) 96 FCR 107; 47 IPR 481; [1999] FCA 1721 at [19] (Coca-Cola); E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 265 ALR 645; 86 IPR 224; [2010] HCA 15 at [43] (Lion Nathan).
2. A mark may contain descriptive elements but still be a "badge of origin": Johnson & Johnson Aust Pty Ltd v Sterling Pharmaceuticals Pty Ltd [1991] FCA 310; (1991) 30 FCR 326 at 347-8; [1991] FCA 310; 101 ALR 700 at 723; [1991] FCA 310; 21 IPR 1 at 24 (Johnson & Johnson); Pepsico Australia Pty Ltd v Kettle Chip Co Pty Ltd (1996) 135 ALR 192; 33 IPR 161; Aldi Stores Ltd Partnership v Frito-Lay Trading Co GmbH ; ; at ().

...Where there are several words or signs used in combination, the existence of a clear dominant "brand" is relevant to the assessment of what would be taken to be the effect of the balance of the label, but does not mean another part of the label cannot also act to distinguish the goods [Anheuser-Busch [2002] FCA 390; (2002) 56 IPR 182 at 228 [191]].

(2010) 87 IPR 464

(1999) 96 FCR 107

(2010) 265 ALR 645

(1991) 30 FCR 326

(1996) 135 ALR 192

(2001) 190 ALR 185

(1963) 109 CLR 407

(2002) 56 IPR 182