[2026] ATMO 3

Trade Marks Act 1995 (Cth) - opposition under section 52 - grounds of opposition under ss 42(b), 44, 60 considered - ss 18 and 29 of the Australian Consumer Law considered - no grounds of opposition established - trade mark application may proceed to registration

1. This is a decision on the opposition by Merck KGaA ('Opponent') under s 52 of the Trade Marks Act 1995 (Cth)[1] to the registration of trade mark 2392559 ('Applicant's Trade Mark'), in the name of Pfizer Inc ('Applicant'). The details of the Applicant's Trade Mark are shown below:

Class 5: Vaccines for human use ('Designated Goods')

1. The acceptance of the Applicant's Trade Mark was advertised on 29 February 2024. The Opponent filed a Notice of Intention to Oppose on 26 April 2024, followed by a Statement of Grounds and Particulars ('SGP') on 27 May 2024. The Applicant filed a Notice of Intention to Defend the application on 18 June 2024.
2. The Opponent filed Evidence in Support ('EIS') on 16 September 2024. The Applicant filed Evidence in Answer ('EIA') on 18 December 2024. The Opponent filed Evidence in Reply on ('EIR') on 19 February 2025. The Opponent and Applicant both requested to be heard by way of written submissions, on 24 March 2025 and 28 March 2025, respectively. On 4 September 2025, the Opponent filed additional evidence outside of the permitted dates for filing evidence. The matter was subsequently allocated to me to decide as a delegate of the Registrar of Trade Marks ('Registrar').

1. The SGP nominated ss 42(b), 44, 58, 59, 60, and 62A as the grounds for opposing the Applicant's Trade Mark, but the Opponent only pressed ss 42(b), 44, and 60 in its written submissions. I therefore treat the Opponent's ss 58, 59 and 62A grounds as having been abandoned. It bears the onus of establishing the remaining grounds.[2] The standard of proof is the civil standard of 'the balance of probabilities'.[3] The rights of both parties are to be determined as at the priority date of the Applicant's Trade Mark ('Relevant Date').[4]

1. The following evidence was filed in the proceedings:

Diana Schmerler and Jessica Schmidt, authorised representatives of Merck KGaA ('Schmerler')

Richard A. Friedman, Assistant General Counsel of Pfizer Inc. ('Friedman')

Diana Schmerler and Jessica Schmidt ('Schmerler 2')

Catrina D. P. Olivera, patent scientist for Gestalt Law ('Olivera')

1. Both Schmerler declarations purport to have been sworn jointly by two individuals. The Act requires that a declaration be in an approved form, and that approved form provides for a single individual to sign. Thus, this declaration is not, strictly speaking, in an approved form. Offering up a joint declaration also presents several other legal and practical difficulties. Doing so will inevitably blur which individual has personal knowledge of any fact set out in the declaration. Swearing a declaration carries with it an implied undertaking to submit to cross-examination, and there are penalties for making a false sworn statement. In the case of a joint declaration, it would not be clear who is to be cross-examined, and on which alleged fact, and to whom to attach any penalties. A joint declaration also raises more subtle issues such as how to deal with credibility issues attaching to just one of the declarants, or how to weigh an otherwise unsupported (yet due to it being sworn by two people, instantly corroborated) assertion. As such, a declaration in this form should generally be avoided in opposition proceedings. However, in this particular case, none of those legal or practical issues arise, largely because the Opponent has been unsuccessful in these proceedings. Given there are no serious issues arising from this particular deployment of a joint declaration, and noting that only substantial compliance with the approved form is required[5], I will treat this as two separate declarations made in identical terms.

1. The Opponent is the Holder of International Registration 1359920, which is Australian trade mark number 1865015 ('Opponent's Registered Trade Mark'). The details of this trade mark are reproduced below:

Class 5: Pharmaceutical products; medical and veterinary preparations; hygiene preparations and articles for medical purposes; dietetic preparations and dietetic food supplements ('Opponent's Goods')

1. The Opponent also claims to be the owner of 'the Opponent's Logo Mark', consisting solely of the circular device from the Opponent's Registered Trade Mark. Collectively, the Opponent's Registered Trade Mark and the Opponent's Logo Mark are the 'Opponent's Trade Marks'.
2. Schmerler states that the Opponent's Logo Mark was created in a branding process commenced in 2016. The Opponent also claims to hold copyright in the Opponent's Logo Mark as a result of that process.
3. Schmerler outlines certain factors in relation to advertising prescription only medication in Australia, which must be approved by the Therapeutic Goods Administration ('TGA') and accord with the advertising code set out by the TGA. Promoting prescription medication to the general public is restricted and there are particular regulations around the promotion of prescription medication to healthcare professionals.
4. Schmerler contains sales figures for a specific drug, Cladribine, sold 'under or by reference to' the Opponent's Registered Trade Mark and the Opponent's Logo Mark for 2021 to 2023. Worldwide figures and Australian figures are shown. Both sets of figures are substantial, but it is not clear whether the figures relate to the Opponent's Registered Trade Mark or the Opponent's Logo Mark. Advertising and marketing expenditure for either of the Opponent's Trade Marks is not provided.
5. Schmerler states that the Opponent is concerned that use of the Applicant's Trade Mark will cause confusion with the 'Opponent's business, the Opponent's product, and Opponent's Composite mark, and the Opponent's Logo Mark' as a result of the use and promotion of the Opponent's Registered Trade Mark and the Opponent's Logo Mark.
6. The Opponent also expresses concerns about the risk of incorrect medication being administered by professionals, as well as potential confusion by end-user consumers, who may rely on visual identity when dealing with medication. Schmerler discusses an issue known as look-alike and sound-alike ('LASA') medications, which have led to the creation of initiatives directed at healthcare professionals to reduce the risk of confusion from LASAs.
7. Schmerler also describes how in 2022 and 2023, the Applicant filed applications to register just the circular device from the Applicant's Trade Mark, and how the Opponent filed oppositions to these applications in several jurisdictions. Schmerler states that following the Opponent's filing of oppositions, the Applicant withdrew the trade mark applications in those jurisdictions and subsequently filed trade mark applications in the form of the Applicant's Trade Marks (i.e. consisting of the word ABRYSVO in addition to the circular device).

1. According to Friedman, the Applicant's Trade Mark was first adopted in the United States of America in 2023, in relation to the Designated Goods. Friedman states that the Applicant first commenced use of the Applicant's Trade Mark in Australia in 2023, after its subsidiary Pfizer Australia Pty Ltd applied for a prescription medication registration with the TGA. The registration was granted on 20 March 2024.
2. The ABRYSVO worldwide website has been active since 15 June 2023. The Australian specific ABRYSVO website has been active since 3 August 2023. Goods bearing the Applicant's Trade Mark are available from the Applicant's website and several physical and online retailers.
3. Friedman contains sales figures in relation to goods bearing the Applicant's Trade Mark, dated from after the Relevant Date.
4. Friedman outlines the differences between the goods used in connection with the Applicant's and Opponent's various trade marks, identified above. The meaning of LASA is explained in Friedman as 'those whose names sound alike when spoken, look alike when written, printed or in a drop-down list, [and/or] are packaged similarly'.
5. Friedman contains a list of other trade marks consisting of 'varieties of circular illustrations' that have been registered as international trade marks by the World Intellectual Property Organisation ('WIPO'), as well as by IP Australia.
6. Exhibit RF-16 to Friedman consists of copies of the outcomes of the Opponent's opposition proceedings in relation to overseas filings of the Applicant's Trade Mark by the Applicant (or a related entity), accompanied by translations. Only the translation of the Moroccan decision appears to be accompanied with a verification certificate as required by reg 21.2(b)(ii). That said, nothing in particular turns on the content of these decisions, or whether they meet formal requirements for filing with this office.
7. Mr Friedman states he is not aware of any instances of confusion between the Applicant's Trade Mark and the Opponent's Trade Marks, which are concurrently marketed in a number of countries around the world, and states that the Applicant's Trade Mark was adopted in good faith.

1. Schmerler 2 describes the Opponent's successful opposition of the Applicant's Trade Mark in the United Arab Emirates, and the United States Patent and Trademark Office's ('USPTO') refusal to register the Applicant's Trade Mark following an opposition, after the Applicant unsuccessfully attempted to withdraw its application.
2. Schmerler 2 reiterates a concern as to the risk of confusion between the medications dealt in between the two parties, based on the similarity of the circular devices each mark contains. Schmerler 2 emphasises various factors to consider when comparing brands, and what might influence brand recognition. It states that brand recall is a combination of name and logo, and that it is difficult to assess whether name or logo is more effective for brand recognition. It claims that some pharmaceutical brand names are meaningless and difficult to recall, and so consumers may rely on visual cues.

1. The Opponent submits that, having regard to Regulation 21.15(4), Olivera should be considered despite being filed late. The Opponent submits that Olivera contains information not in existence when the Opponent prepared its EIR or when it requested to be heard, which the Opponent considers to be directly relevant and have significant probative value in relation to this matter.
2. The late evidence references instances of actual confusion of a particular product of the Applicant's with third party products in Australia 'with dissimilar brand names (visually aurally, and conceptually) and with different visual identities', as a response to claims in Friedman regarding the use of 'brand names' by medical professionals to distinguish medication types rather than visual cues. Several annexures to Olivera provide details of products which were administered instead of those bearing the Applicant's Trade Mark. The Opponent submits this provides context to its claim that medical professionals make mistakes. It also contains a copy of the decision issued following the Opponent's opposition to the registration of the Applicant's Trade Mark with the Columbian IP office, along with a translated copy of the decision. This translation is not accompanied by a certificate of verification.
3. In response to the evidence of confusion of medications, the Applicant submits that evidence of confusion between the Applicant's Trade Mark and the trade marks of other third parties does not tend to prove or disprove a likelihood of confusion between the Applicant's Trade Mark and either of the Opponent's Trade Marks. The Applicant draws my attention to the circumstances outlined in CO-1, which discusses confusion that appears to have occurred because medical professionals mistakenly believed that one trader's RSV vaccine was equally administrable as another's, when in fact one was not registered for use among a particular demographic.
4. I agree with the Applicant's submissions. Olivera speaks to the importance of medical professionals taking all due diligence when selecting medication. However, it contains no information which might substantiate any of the grounds of opposition pressed by the Opponent.
5. In relation to the outcome of opposition proceedings in Columbia, the risk of confusion in this proceeding is to be gauged on the market conditions in Australia, and the body of law surrounding s 44 of the Trade Marks Act 1995 (Cth), not decisions made in other jurisdictions in relation to different legislation.
6. For these reasons, I give the Opponent's late evidence no weight.

Section 44 - Identical etc. trade marks

1. Section 44(1) relevantly states:

(1) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant's trade mark) in respect of goods (applicant's goods) must be rejected if:

(a) the applicant's trade mark is substantially identical with, or deceptively similar to:

(i) a trade mark registered by another person in respect of similar goods or closely related services; or

(ii) a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and

(b) the priority date for the registration of the applicant's trade mark in respect of the applicant's goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

1. For this ground of opposition to be successful, the Opponent must establish that the Applicant's Trade Mark is substantially identical with or deceptively similar to another trade mark, which has an earlier priority date, is in the name of a person other than the Applicant, and is in respect of similar goods or services that are closely related to the Designated Goods.
2. The Opponent's Registered Trade Mark is in the name of a person other than the Applicant. The priority date of the Opponent's Trade Mark is earlier than the priority date of the Applicant's Trade Mark. The Opponent's Goods would as a matter of description include vaccines for human use, being the Designated Goods. Therefore, the goods in the Opponent's Registered Trade Mark are similar to those in the Applicant's Trade Mark. The contentious issue is whether the Applicant's Trade Mark is deceptively similar to the Opponent's Registered Trade Mark.
3. Section 10 states:

For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.

1. In Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd, Windeyer J described the test for deceptive similarity as one considering:

[O]n the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's television exhibitions. To quote Lord Radcliffe again: "The likelihood of confusion or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him . . . . It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole".[6]

1. Principles outlined in other authorities that are relevant to this comparison include:
   • Deceptive similarity must not be judged by the degree of similarity alone, but by the effect of that similarity in all the circumstances.[7] This involves considering the general impression of each trade mark, allowing for the effect of imperfect recollection.[8]
   • The trade marks must be considered as wholes.[9]
   • The two trade marks must be judged by their look and sound.[10]
   • A possibility of confusion is not sufficient. There must be a real tangible danger of its occurrence.[11]
   • In considering whether there is a likelihood of deception or confusion, all surrounding circumstances have to be taken into consideration.[12]

1. The Opponent submits that the device components of each trade mark are visually very similar, and that 'the critical question is the extent to which the word components MAVENCLAD and ABRYSVO distinguish their respective trade marks, considered as a whole'. It accepts that the word components in each trade mark are distinctive, but, in reference to the Full Court's decision in Crazy Ron's Communications Pty Ltd v Mobileworld Pty Ltd ('Crazy Ron's'),[13] cautions against characterising MAVENCLAD and ABRYSVO as essential features in their respective trade marks. In its submissions, the Opponent appears to propose that the relevant comparison should be undertaken with the exclusion of the words in each trade mark.
2. As noted above, determining deceptive similarity involves considering the general impression a consumer would have of two trade marks, as well as the potential for imperfect recollection. It is a holistic comparison of the trade marks as they appear on the Register of Trade Marks,[14] which includes weighing the visual similarities, aural similarities, and any conceptual similarities that the trade marks might possess, and estimating the effect of these similarities.
3. On deceptive similarity, in Australian Woollen Mills Ltd v FS Walton & Co Ltd, the majority of the Court stated:

An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning may play an important part.[15]

1. The Opponent's evidence outlines the strict regulatory framework within which medicines are marketed and administered, and demonstrates an industry-wide focus on the importance of diligence and caution when administering medication. There is no particular evidence of product 'names' being disregarded by consumers in favour of devices. On the contrary, it supports that the 'name' of the brand or compound, either spoken or written, is relied upon to a very high degree in marketing and instructional contexts, as well as in general use.
2. With this in mind, the Opponent's submissions provide no reasonable basis for concluding that the words MAVENCLAD and ABRYSVO are not essential features in their respective trade marks. They cannot be excluded from a visual or aural comparison between the trade marks in question.
3. To answer the 'critical question' the Opponent posed, the words MAVENCLAD and ABRYSVO would distinguish these trade marks to a great extent. They are entirely dissimilar both visually and aurally, and would significantly affect the impression a consumer would carry away and retain from each trade mark.
4. The devices in the Applicant's Trade Mark and the Opponent's Registered Trade Mark could both be broadly characterised as a circular device made of an arrangement of crescents. The crescents in the Opponent's Registered Trade Mark are longer, creating almost complete circles. These crescents are densely packed and opposed at 180 degrees, such that they create the impression of ripples, the crescents being shadows created by the ripples. This may create a more concrete impression in a consumer's mind than the abstract arrangement of fewer and smaller crescents in the Applicant's Trade Mark, placed in a more irregular fashion. The precise differences between the devices may stand out less in the context of imperfect recollection, however, the relevant question involves imperfect recollection of the whole.[16]
5. Consumers are unlikely, in my assessment, to recall only the device from the Opponent's Registered Trade Mark. In that mark the device is accompanied with the distinctive, prominent and memorable word MAVENCLAD. A consumer with knowledge of the Opponent's Registered Trade Mark is likely to recall, perhaps imperfectly, the device with the word. The spelling or pronunciation of the word may not be perfectly recalled, but that word would not be recalled in a way that might give a consumer cause to wonder when they are confronted for the first time by the very differently spelled and pronounced ABRYSVO, accompanied by a vaguely familiar circular device. When considering the trade marks as wholes, the qualities the devices do share are significantly outweighed by the overall visual differences between the trade marks, as well as the complete lack of similarity of the textual elements.

1. In the Opponent's evidence, instances of confusion about medication resulted from factors such as containers of approximately the same dimensions and colours containing different drugs, or products bearing the same trade mark but being different drugs, or different dosages of the same product being administered by mistake. At most, the Opponent's evidence indicates that making assumptions can result in serious errors. Where the evidence discussed the risks of similar looking or sounding product names, the names for the products in those examples had at least some degree of similarity, which is not the case here.

1. Considering the trade marks as wholes, and all the surrounding circumstances, including the nature of the Designated Goods and the relevant market conditions, I am not satisfied that there is a real and tangible danger of confusion between the Applicant's Trade Mark and the Opponent's Registered Trade Mark. The ground of opposition under s 44 has not been established.

Section 60 - Trade mark similar to trade mark that has acquired a reputation in Australia

1. Section 60 relevantly states:

The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

(a) another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and

(b) because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.

1. In Rodney Jane Racing Pty Ltd v Monster Energy Company ('Rodney Jane'), O'Bryan J outlined the following:

The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally...[17]

1. For the purposes of s 60, the reputation must lie in a particular trade mark.[18] 'Reputation' in this context means recognition by the public generally.[19] The existence of a reputation is a question of fact.[20]
2. The Opponent has claimed there exists a reputation in each of the Opponent's Trade Marks in relation to pharmaceutical and medicinal products. The evidence does not attempt to differentiate the Opponent's Trade Marks, and does not include any examples of use of the Opponent's Logo Mark as a trade mark in its own right. Throughout the evidence this device is only ever shown in the form of the Opponent's Registered Trade Mark. That is, as one element of a composite trade mark. As such, I cannot be satisfied that the Opponent's Logo Mark enjoys its own reputation. The discussion that follows is therefore in relation to only the Opponent's Registered Trade Mark.
3. The Opponent has provided very little evidence that might go to a reputation in Australia, beyond the aforementioned sales figures for the years 2021 to 2023. Reputation can be inferred from a high volume of sales, together with advertising figures and examples of actual use in the jurisdiction.[21] However, no advertising nor marketing expenditure is in evidence, nor examples of how goods to which the Opponent's Registered Trade Mark is applied have been promoted in Australia, or to whom. For example, while annexure M-2 to Schmerler contains several press releases from the Opponent's website, these do not appear to be directed at Australia or Australian consumers. Also, in the terms expressed by O'Bryan J in Rodney Jane, any qualitative aspect of the asserted reputation in the Opponent's Registered Trade Mark is unexplored in the Opponent's Evidence.
4. Considering the lack of information relating to reputation outside of sales figures, the Opponent has not discharged its onus in establishing a reputation in the Opponent's Registered Trade Mark as at the Relevant Date. The Opponent's case for s 60 fails under s 60(a).
5. I have decided earlier in relation to s 44 that the Applicant's Trade Mark is not deceptively similar to the Opponent's Registered Trade Mark. The Opponent has also provided no information as to how use of the Applicant's Trade Mark is likely to result in confusion or deception among consumers in a way that differs in any substantive manner from the Opponent's case under s 44. For this reason, the Opponent's case for s 60 would have also failed under s 60(b).

Section 42 - Trade mark scandalous or its use contrary to law

1. Section 42(b) states that an application for the registration of a trade mark must be rejected if its use would be contrary to law.
2. The Opponent submits that because of the reputation of the Opponent's Trade Marks in relation to a treatment for multiple sclerosis, demonstrated by high sales figures and the Opponent's leading and prominent position in the pharmaceutical industry, use of the Applicant's Trade Mark would lead to 'deception and confusion'. Consumers would 'at least' erroneously believe that the Designated Goods (1) emanated from the Opponent; (2) were associated or endorsed by them; or (3) were qualitative equivalents to those offered by the Opponent. Such use, it submits, would therefore contravene ss 18(1) and 29 of Schedule 2 to the Australian Consumer Law ('ACL') of the Competition and Consumer Act 2010.
3. Section 18 of the ACL relevantly provides:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. Section 29 of the ACL contains a variety of species of false or misleading representations about goods or services. Although the Opponent has not sought to limit the nature of the false or misleading representations it alleges, the three examples the Opponent references in its submissions appear to accord roughly with s 29(1)(g) and s 29(1)(h), reproduced below:

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

(h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation;

1. There is no meaningful difference between the phrases 'misleading and deceptive', 'mislead or deceive', or 'false or misleading' in ss 18 and 29.[22]
2. Conduct is 'misleading or deceptive' if it tends to lead into error, so long as the error has a sufficient causal link to the conduct.[23] It is not sufficient that a person's conduct is simply confusing, or that people were caused to wonder whether two products came from the same trade source.[24] There must be an erroneous assumption made by the relevant public, which was caused by the impugned conduct.[25]
3. Confusion is readily distinguished from deception or being deceived. In the New Zealand case of Pioneer Hi-Bred Co v Hyline Chicks Pty Ltd, Richardson J explained:

"Deceived" implies the creation of an incorrect belief or mental impression and causing "confusion" may go no further than perplexing or mixing up the minds of the purchasing public. Where the deception or confusion alleged is as to the source of the goods, deceived is equivalent to being misled into thinking that the goods bearing the applicant's mark come from some other source and confused to being caused to wonder whether that might not be the case.[26]

1. The evidentiary basis of the Opponent's s 42(b) ground of opposition is the same as its s 60 ground, if not narrower. It is founded on the same claim to a reputation of the Opponent's Trade Marks, although now in relation to a treatment for multiple sclerosis, rather than pharmaceuticals and medicinal products generally. However, the s 42(b) ground imports the stricter requirement of demonstrating that such conduct 'would' be contrary to certain provisions of the Competition and Consumer Act 2010 (Cth).
2. In relation to its s 60 ground, the Opponent failed to establish that consumers would be deceived by use of the Applicant's Trade Mark. That is to say, the Opponent has already failed to show that use of the Applicant's Trade Mark would tend to lead consumers into error resulting from an incorrect belief or mental impression about the origin of the Designated Goods.
3. Therefore, I am not satisfied that use of the Applicant's Trade Mark would mislead or deceive, or constitute a false representation, under ss 18(1) or 29 of the ACL. The ground of opposition under s 42(b) has not been established.

1. Section 55(1) relevantly states that:

Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

having regard to the extent (if any) to which any ground on which the application was opposed has been established.

1. As the Opponent has not established a ground of opposition, the Applicant's Trade Mark may proceed to registration not less than one month from the date of this decision. If the Registrar is served with a notice of appeal within that time, the disposition of this opposition should be in accordance with the Court's order or direction.

1. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle. I award costs against the Opponent in accordance with s 221, in the amounts set out in Schedule 8.

[1] Unless stated otherwise, references to sections or regulations in this decision are references to sections of the Trade Marks Act 1995 (Cth) ('Act') or regulations of the Trade Marks Regulations 1995 (Cth) ('Regulations'), respectively.

[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[3] Telstra Corporation Limited v Phone Directories Company Australia Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [4] (Kitto J).

[5] Acts Interpretation Act 1901 (Cth), s 25C.

[6] [1963] HCA 66, [13] (citations omitted).

[8] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [29] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) ('Self care').

[9] Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd [1952] HCA 15, [3] (Dixon, Williams and Kitto JJ).

[10] Re Application by Pianotist Company Ltd (1906) 23 RPC 774, 380 (Parker J).

[11] Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020, [50] (French J).

[13] [2004] FCAFC 196, [100] (Moore, Sackville and Emmett JJ).

[15] [1937] HCA 51, 658 (Dixon and McTiernan JJ)

[16] Clark v Sharp (1898) 15 RPC 141, 146 (Byrne J)

[17] [2019] FCA 923, [83] (citations omitted).

[18] McCormick & Company Inc v McCormick [2000] FCA 1335, [94] (Kenny J) ('McCormick').

[20] ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 176, [117] (Lockhart J).

[22] Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd [2016] FCA 235, [260] (Beach J).

[23] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, [39] (French CJ, Crennan, Bell and Keane JJ).

[24] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 [8] (Gibbs CJ).

[25] REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559, [79] (Bromberg J).

[26] [1979] RPC 41, 423 (citations omitted).