2026 ATMO 53

Trade Marks Act 1995 (Cth) - opposition under section 52 - s 44 established - trade mark refused

1. This decision concerns an opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] by Universal Protein Supplements Corporation ('Opponent') to registration of the following trade mark:

Class 32: Energy drinks; Aerated drinks (non-alcoholic); Alcohol-free drinks; Carbonated non-alcoholic drinks; Sports drinks (non-medicated)

1. The Trade Mark was examined and advertised as accepted for possible registration on 22 July 2024.
2. On 10 September 2024, the Opponent filed a Notice of Intention to Oppose the Application. Subsequently on 20 September 2024, the Opponent filed a Statement of Grounds and Particulars ('SGP'). The Applicant filed a Notice of Intention to Defend ('NID') on 25 October 2024.
3. The parties then filed evidence in accordance with the Regulations. The Opponent filed Evidence in Support ('EIS') on 29 January 2025. The Applicant filed Evidence in Answer ('EIA') on 28 April 2025. No Evidence in Reply was filed.
4. Following the closing of the evidence stages, both parties requested a hearing by way of written submissions. The Opponent's written submissions were prepared by Shannon Fati and Nicola Scheepers of Griffith Hack Lawyers and filed on 13 February 2026. The Applicant's written submissions were prepared by Andrew Petale of YIP Legal Pty Ltd and filed on 24 February 2026. I am a delegate of the Registrar of Trade Marks and I make this decision based on the aforementioned materials and written submissions of the parties.

1. The SGP nominates grounds of opposition under ss 42(b), 44, 58, 58A, 60 and 62A. The s 58 ground of opposition was not pressed and I treat this ground as abandoned.
2. The Opponent bears the burden of establishing at least one ground of opposition[2] on the balance of probabilities.[3] The date at which the rights of the parties are to be determined is the Relevant Date being both the filing date and priority date of the Application.[4]

1. The following evidence was filed in the proceedings:

TT-1 to TT-23 (including confidential annexures TT-8, TT-11, TT-12, TT-15 to TT-17)

1. Tatum declares that the Opponent was established in 1977 and is a leading manufacturer of sports, athletic and body building nutritional supplements. It manufactures and sells nutritional supplements, clothing and fitness accessories in over 109 countries, including Australia since September 2003.
2. One of the Opponent's most prominent brands is ANIMAL, comprising high‑performance supplements designed to support customers' training outcomes and maximise physical performance. The ANIMAL brand forms part of a family of trade marks incorporating the word ANIMAL which includes marks such as Animal Cuts, Animal Fury, Animal Pak, Animal Pump, Animal Rage XL and Animal Stak, amongst others (collectively 'Opponent's Marks').
3. Since at least September 2003, the Opponent has offered for sale a wide range of products under the Opponent's Marks, including creatine products, fat‑burning supplements, amino acid supplements, pre‑workout and post‑workout supplements, joint and immune support products, protein powders, meal replacement products and testosterone‑boosting supplements ('Opponent's Goods'). The Opponent's Goods are predominantly sold in powder form, including for use in shakes and drinks, and in a variety of flavours. Extracts of these products featured on the Opponent's website at www.animalpak.com ('Opponent's Website'), in July 2022, are annexed.
4. The Opponent owns the following Australian trade mark registrations ('Opponent's Prior Marks'):

Class 5: Human dietary, health, body building and fitness supplements, including without limitation dietary food supplements, herbal supplements, meal replacement and dietary supplement drink mixes, mineral nutritional supplements, mineral supplements, nutritional supplements, nutritional supplement drink mixes, vitamin and mineral supplements, vitamin supplements, meal replacement bars, protein supplements

Class 5: Nutritional supplements; powdered nutritional supplement drink

Class 25: Apparel (clothing, footwear, headgear); Headgear for wear; Footwear; Clothing

Class 5: Supplements, namely, dietary food supplements, dietary supplements, food supplements, herbal supplements, meal replacement and dietary supplement drink mixes, mineral nutritional supplements, mineral supplements, nutritional supplements, nutritional supplement drink mix, vitamin and mineral supplements, vitamin supplements, meal replacement bars

Class 25: Clothing, namely, hats, caps, bottoms, tops, shorts, pants, shirts, sweat shirts, sweat pants, sweat shorts, sweat jackets

Class 5: Dietary food supplements; a nutritional supplement comprised of but not limited to vitamins, minerals and training nutrients

Class 5: Powdered nutritional supplement drink mix for human consumption; dietary supplement drink mixes in powdered form for human consumption

Class 5: Nutritional supplements for human consumption

Class 5: Nutritional supplements for human consumption

1. The Opponent has operated the website www.universalnutrition.com ('Universal Nutrition Website') since 1998 and the websites www.universalanimal.com and the Opponent's Website since at least March 2000. Historical extracts of the Opponent's Website from 2004-2023 are provided. The Opponent also promotes its goods under the Opponent's Marks on social media and specifies the number of followers of its Facebook, Instagram, YouTube and Twitter (now X) accounts. Extracts from these accounts are annexed to Tatum.
2. On 9 February 2003, the Opponent appointed EMI Nutrition Pty Ltd ('EMI') as its exclusive Australian distributor of the Opponent's Goods but no written agreement was entered into. An extract from the Universal Nutrition Website on 3 January 2010 lists EMI as the Australian distributor for the Opponent's ANIMAL products. In 2016, Glanbia Plc acquired EMI and continued to distribute the Opponent's Goods including via its website at www.global-nutrition.com ('Global Nutrition Website'). At the time of Tatum, Global Nutrition was the Opponent's Australian distributor and was listed on the Universal Nutrition Website as such according to a website extract from 5 February 2023. Extracts from the Global Nutrition Website dating from 2017, featuring the Opponent's Goods, are also provided.
3. Tatum attests that the Opponent's Goods and other products such as clothing have been continuously sold by its distributors to various Australian retailers throughout Australia including gyms, health stores, pharmacies, personal trainers and online retailers. Wholesale sales figures by EMI from July 2013 to February 2016, by Glanbia from April 2016 to April 2019 and by the Opponent to Glambia from 2016 to 2022 are provided.
4. The Opponent's Goods have also been promoted at fitness expos in Australia. Tatum annexes photographs of the Opponent's Goods, apparel and merchandise bearing the ANIMAL brand at the 2015 and 2016 Arnold Classic Fitness Expos. The Opponent's promotional expenditure for advertising its goods at fitness expos are provided. Tatum also annexes a survey entitled Bold Discovery conducted during the Arnold Classic 2016 expo, which includes the survey results from over 2000 responses to questions regarding, amongst other things, where consumers have heard of or purchased the goods bearing the Opponent's Marks.
5. Tatum declares that the the Applicant is a professional mixed martial arts ('MMA') fighter based in Australia. According to Tatum, nutritional supplements sold under the Opponent's ANIMAL brand are commonly used and recommended within the MMA and broader athletic community. Tatum annexes an article dated 21 October 2022 titled Top 5 Most Important Supplements for MMA that recommends the Opponent's ANIMAL PAK and ANIMAL FLEX products as leading supplement products tailored to athletes, with a longstanding market presence and industry recognition.
6. Tatum also attests that the Applicant's Goods are closely related to nutritional supplements in nature, purpose and use, particularly in the health and fitness market. Numerous well‑known brands sell supplements, energy drinks and sports drinks under the same trade mark, often through the same retail channels, including supermarkets, pharmacies and service stations. Tatum provides examples of the websites of different traders who offer nutritional supplements and protein powders as well as sports and energy drinks.
7. Finally, the Opponent notes that it previously succeeded in opposing the Applicant's trade mark applications for THE ANIMAL LIFE (in word and figurative form shown below), with the delegate finding those marks to be deceptively similar to the Opponent's ANIMAL mark ('Earlier Decision').[6]

1. Nuredin declares that he is a professional MMA fighter and the founder of the Melbourne Muay Thai Academy, which has operated since 2015. In late 2020, he developed the name THE ANIMAL LIFE for a proposed range of sports apparel and fitness equipment. The Applicant registered THE ANIMAL LIFE as a word mark and in a stylised version in Classes 25 and 28 under Australian registrations 2146045 and 2155916 respectively.
2. In June 2021, the Applicant launched clothing and fitness products under the ANIMAL LIFE brand, promoting them through an Instagram account. Annexed to Nuredin are screenshots of the Opponent's Instagram account showing use of the Trade Marks on clothing and socks. Nuredin declares that in February 2024, he decided to expand the brand to sports and energy drinks and filed the Application. He has not yet used the Trade Mark for the Applicant's Goods.
3. Nuredin asserts that the stylisation of the Trade Mark is visually distinct from the Opponent's mark.

Section 44

1. Section 44 relevantly provides:

(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. In its SGP, the Opponent nominates the Opponent's Prior Marks as the basis for this ground of opposition. Accordingly, the Opponent will succeed on this ground of opposition if I am satisfied that one or more of the Opponent's Prior Marks satisfies each of the requirements below:
   • it has a filing date which is earlier than that of the Application and is held in a name other than that of the Applicant ('First Requirement');
   • the Applicant's Goods are similar to the goods covered by it ('Second Requirement'); and
   • the Trade Mark is substantially identical with or deceptively similar to it ('Third Requirement').
2. Each of the Opponent's Prior Marks satisfies the First Requirement in that these registrations are in the name of someone other than the Applicant and each has an earlier priority date than the Application.

1. Section 14 provides that goods are similar to other goods if they are the same or of the same description as the other goods.
2. Whether two sets of goods are similar is a question of fact[7] to be assessed from a commercial point of view.[8] The expression 'goods of the same description' should not be given so restricted a construction that it is limited to goods substantially analogous in kind, or commonly used as mere substitutes or alternatives for one another.[9] The factors relevant to the consideration of whether goods are similar include their origin and characteristics, their intended purposes and uses, source of manufacture, respective trade channels and whether the ordinary consumer of the goods would regard the goods as being from a single source.[10]
3. The Opponent submits that the Opponent's Prior Marks registered in class 5 broadly cover dietary and nutritional supplements, including powdered drink mixes, which are said to be identical or similar to the Applicant's Goods. The Opponent points to the evidence in Tatum showing that nutritional supplements and energy or sports drinks are often manufactured and marketed by the same traders under the same brands, are closely related in nature and purpose, often contain similar functional ingredients, and are sold through the same retail channels to the same consumers. Accordingly, the Opponent submits that the relationship between the goods is sufficiently close that consumers would expect them to originate from the same trade source.
4. The Applicant argues that the Applicant's Goods, being ready‑to‑drink non‑alcoholic beverages are not the same or similar to the Opponent's dietary supplements and powdered drink mixes. The Applicant contends that the Opponent's Prior Marks do not cover beverages in a ready-to-drink format. In the Applicant's submission, supplements and beverages differ in character and purpose, with supplements being specialised products commonly produced by dedicated manufacturers, purchased with care for health or lifestyle reasons, and typically sold in health focused retail stores or areas rather than beverage sections. The Applicant further submits that the fact that a beverage may contain vitamins or similar ingredients does not render it similar to a supplement, and that drink mixes are not similar to beverages. As the Applicant's Goods do not claim any supplement or nutritional benefit, the Applicant says that the goods are different.
5. In support of its arguments, the Applicant relies on the following decisions:
   • Hamdard National Foundation (India) v Hamdard Laboratories (WAQF) Pakistan ('Hamdard'):[11] 'dietetic foods adapted for medical purposes' were found not to be similar goods to 'liquids in the form of beverages and syrups';
   • Guangzhou Baiyunshan Pharmaceutical Holdings Pty Ltd v Multi Access Ltd ('Baiyunshan Pharmaceutical'):[12] 'Herbal products for food and medicinal purposes' were not considered similar goods to non-alcoholic beverages and juices (except for herbal juices and herbal beverages); and
   • Cadbury Schweppes Pty Ltd v Wal-Mart Stores Inc:[13] 'vitamins and minerals' were found not to be similar goods to non-alcoholic beverages and fruit juices.
6. I do not find the Applicant's reliance on the above authorities persuasive. The goods considered in Hamdard and Baiyunshan Pharmaceutical are materially different from those presently in issue. In Hamdard, while 'dietetic foods adapted for medical purposes' were held not to be similar to beverages, a number of goods in class 5 that were, in substance, beverage products (including dietetic beverages, herbal teas, medicinal tea, pharmaceutical syrups and mineral waters for medical purposes) were found to be similar. In Baiyunshan Pharmaceutical, the conclusion turned on the dictionary meaning of 'food' as distinct from drink, and the other class 5 goods were not found similar to beverages in the absence of evidence addressing this question.
7. Cadbury Schweppes is closer to the present issue, but it was decided more than two decades before the Relevant Date. Since then, as I noted in Australasian Conference Association Limited v Target Brands Inc,[14] there has been a growing trend for food and beverage products to have added nutritional supplements such as protein, calcium, or electrolytes. These enriched and non-enriched products are generally manufactured by the same traders, sold through the same trade channels, with the same nature and for the same purpose. I do not accept the Applicant's submission that nutritional supplements are necessarily sold in different parts of retail outlets from sports and energy drinks. In my opinion, it is not uncommon for some sports and energy drinks to be sold in close proximity to nutritional supplements and this is true of the brands detailed in Tatum which sell both sets of goods.
8. Although drink mixes are supplied in powdered form, they are intended to be prepared and consumed as beverages, and the difference in format does not materially alter their commercial character. In addition to the brands detailed in Tatum which offer both powder drink mixes and ready to drink beverages, there are other well-known examples in the market such as MILO which sells a beverage 'powder', a protein enriched beverage 'powder' and a ready to drink beverage. Such products are commonly positioned as supporting energy, hydration, recovery or performance, which aligns with the functions for which sports and energy drinks are marketed and purchased. They are directed to the same or overlapping consumers, particularly health conscious consumers and those engaged in physical activity, and are sold through the same retail outlets. In these circumstances, ordinary consumers would be likely to perceive the goods as similar and as capable of originating from the same trade source.
9. For the aforementioned reasons, I am satisfied that many of the Applicant's Goods are similar to those of the Opponent's Prior Marks.

Substantially identical and deceptively similar

1. The test for determining whether trade marks are substantially identical was articulated by Windeyer J in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd ('Shell'):

In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[15]

1. The Opponent submits that the Trade Mark is substantially identical to the 544 and 864 Marks because in each case, the dominant cognitive cue and essential feature striking the eye is the word ANIMAL.[16] The Applicant contends that this reasoning was not adopted in later Full Federal Court decisions such as Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd which instead focussed on the importance of the contribution of any additional words to the overall impression conveyed by the marks when compared side by side.[17] The Applicant further submits that the present comparison is distinguishable from Pham Global where the marks differed in descriptive words and had similar devices whereas here the stylisation of the Trade Mark and additional word LIFE are distinctive. The Applicant claims that these differences are such that the Trade Mark is not substantially identical to the Opponent's 544 and 864 Marks.
2. The relevant marks are shown side by side below:

1. I agree with the Applicant that on a side by side comparison, there are notable differences between the Trade Mark and the Opponent's 544 and 864 Marks. The additional word LIFE and stylisation of the Trade Mark are such that there is not a total impression of resemblance. It follows that nor are the rest of the Opponent's Prior Marks substantially identical to the Trade Mark Accordingly, I turn to a consideration of whether the Trade Mark is deceptively similar to the Opponent's Prior Marks.
2. Section 10 provides that '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'.
3. In Shell, Windeyer J provided the following insights on deceptive similarity:

The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on 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 [mark].[18]

1. In Australian Woollen Mills Ltd v FS Walton & Co Ltd,[19] the High Court noted:

In deciding this question, the marks are not, of course to be compared side by side. 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, the similarities both of sound and of meaning must play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The course of business and the way in which the particular of goods are sold gives, it may be said the setting, in the habits and observation of men considered in the mass affords standard.

1. For trade marks to be considered deceptively similar, there must be a real tangible danger of confusion which will be the case where an ordinary person would entertain a reasonable doubt about whether the goods come from the same trade source.[20] The basis for any deception or confusion is the impression or recollection of the trade marks that is carried away and retained by the ordinary consumer,[21] allowing for imperfect recollection of the trade marks.[22] The impression comes from the trade marks in their entirety,[23] and is informed by the look, sound and ideas conveyed by the trade marks.[24]
2. In support of the Opponent's arguments that the Trade Mark is deceptively similar to its 544 and 864 Marks, the Opponent contends that the present comparison is no different to the marks found to be deceptively similar in the Earlier Decision. In the Earlier Decision, the Delegate held that ANIMAL was the leading and essential element of the marks, that the additional elements did not alter the overall impression, and that consumers with an imperfect recollection would be caused to wonder whether the goods were connected with the Opponent. As with the marks in the Earlier Decision, it is contended, the dominant and essential feature of the Trade Mark is the word ANIMAL. The Opponent submits that ANIMAL is the central cognitive cue and element that immediately strikes the consumer as it appears at the beginning of the Trade Mark, which is the most important position for comparison purposes when assessing deceptive similarity. The Opponent says that this creates a strong visual and aural resemblance with the Opponent's ANIMAL word mark. The gothic stylisation of the Trade Mark is limited and does not materially affect the overall impression, which remains centered on the word ANIMAL.
3. Further, the Opponent argues that the marks are conceptually similar because the primary idea conveyed by the Trade Mark is an 'animal' and the word LIFE does not introduce a different concept but rather refers back to or qualifies the central idea of an animal. Hence, it is submitted, the Trade Mark and the 544 Mark both convey the same essential meaning. As a result of the shared meaning and common dominant element ANIMAL, the Opponent submits that consumers with an imperfect recollection are likely to wonder whether goods sold under the Trade Mark originate from or are connected with the Opponent.
4. The Applicant's position is that the Earlier Decision is not determinative and the question of deceptive similarity must be assessed afresh by comparing the marks as a whole in context and with regard to the overall impression. The Applicant argues that ANIMAL LIFE is a single, unified phrase conveying an 'animalistic lifestyle', which differs conceptually from the mark ANIMAL solus. It adds that the additional word LIFE, as well as the stylisation, materially alters the visual, aural and conceptual impression. The Applicant further submits that the addition of a distinctive word element can materially alter the overall impression of a mark such that the shared word does not dominate,[25] and the additional word would not be overlooked and/or the extra word changes the meaning.[26] Also, the Applicant says that ANIMAL is an ordinary English word that cannot be monopolised,[27] and that use of it within the Trade Mark is unlikely to mislead. Allowing for imperfect recollection, consumers would remember the Trade Mark as a whole and are unlikely to confuse it with or associate it with the Opponent.
5. I am satisfied that the Trade Mark is deceptively similar to the 544 Mark. Although the Earlier Decision is not determinative of the present case, I consider the marks presently under consideration to be at least as similar as those in the Earlier Decision. The word ANIMAL appearing as the first and leading element of the Trade Mark immediately strikes the eye and ear, and creates a strong visual and aural resemblance with the 544 Mark. The additional word LIFE and stylisation of the font in the Trade Mark does not displace or materially alter that impression. Conceptually, the word LIFE qualifies or reinforces the central idea of an animal rather than introducing a distinct or unrelated meaning. The stylisation is limited and does not significantly affect the overall visual or aural impression, which remains centered on the word ANIMAL. Allowing for imperfect recollection, I consider there is a real and tangible danger that consumers would be caused to wonder whether goods sold under the Trade Mark originate from, or are connected with, the Opponent. Accordingly, the Trade Mark so nearly resembles the 544 Mark that it is likely to deceive or cause confusion and is therefore deceptively similar to at least the 544 Mark.
6. For completeness, I note that the Applicant has not used the Trade Mark and therefore, is not entitled to registration on the basis of honest concurrent use or prior use. Nor has the Applicant asserted that there are other relevant circumstances justifying registration of the mark under s 44(3)(b).
7. The s 44 ground of opposition is successful.

1. Section 55 relevantly provides:

(1) 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. The Opponent has established a ground of opposition under s 44 and therefore, I refuse to register application 2428777. If the Registrar is served with a notice of appeal within one month from the date of this decision, I direct that the disposition of the Application be in accordance with the court's direction or order.
2. Both parties requested an award of costs. As costs generally follow the event, I award costs against the Applicant under s221 in the applicable amounts set out in Schedule 8 of the Regulations.

[1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth) ('Act') and each reference to a regulation is a reference to a regulation in the Trade Marks Regulations 1995 (Cth) ('Regulations').

[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 Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelmann JJ).

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