Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44

Federal Court of Australia

Energy Beverages LLC v Cantarella Bros Pty Ltd [2023] FCAFC 44 Appeal from: Energy Beverages LLC v Cantarella Bros Pty Ltd [2022] FCA 113

File numbers: NSD 144 of 2022 NSD 145 of 2022

Judgment of: YATES, STEWART AND ROFE JJ

Date of judgment: 22 March 2023

Catchwords: TRADE MARKS – application for leave to appeal from judgment of a single judge of the Court pursuant to s 195(2) of the Trade Marks Act 1995 (Cth) (the Act) – where primary judge dismissed an appeal from the decision of a delegate of the Registrar of Trade Marks in opposition proceedings – where delegate granted respondent's application under s 92(4)(b) of the Act to remove the applicant's registered trade mark MOTHERLAND from the Register for non-use – whether primary judge erred in finding applicant had not used MOTHERLAND as a trade mark – whether primary judge erred in finding applicant had not used MOTHERLAND as a trade mark during the relevant non-use period – no error established – application for leave to appeal dismissed TRADE MARKS – application for leave to appeal from judgment of a single judge of the Court pursuant to s 195(2) of the Act – where primary judge dismissed an appeal from the decision of a delegate of the Registrar of Trade Marks in opposition proceedings – where delegate found that applicant had not established grounds of opposition under ss 44, 60 and 42(b) of the Act to the respondent's application to register MOTHERSKY – whether primary judge erred in failing to find that "coffee" and "non-alcoholic beverages" are similar goods within the meaning of s 44(1) of the Act – whether primary judge erred in finding that MOTHERSKY is not deceptively similar to MOTHER within the meaning of s 44(1) – whether primary judge erred in failing to find that use of MOTHERSKY in respect of "coffee" would be likely to deceive or cause confusion due to the reputation of MOTHER – error established – application for leave to appeal granted – appeal allowed