Halal Certification Authority Pty Limited v Flujo Sanguineo Holdings Pty Limited [2023] FCAFC 175

Federal Court of Australia Halal Certification Authority Pty Limited v Flujo Sanguineo Holdings Pty Limited [2023] FCAFC 175 Appeal from: Halal Certification Authority v Flujo Sanguineo Holdings Pty Ltd [2021] FCA 1399

File number: NSD 1286 of 2021

Judgment of: NICHOLAS, BURLEY AND CHEESEMAN JJ

Date of judgment: 2 November 2023

Catchwords: TRADE MARKS – where appellant's trade mark registered in respect of services comprising (inter alia) issuing halal certifications to businesses and individuals for goods and services if religious and technical requirements are met ("the registered services") – whether primary judge erred in finding that the respondents' use of a logo on their packaging ("the Packaging Logo") that was substantially identical to the appellant's registered trade mark ("the Trade Mark") was not "use" as a trade mark pursuant to s 120 of the Trade Marks Act 1995 (Cth) ("the Act") – whether primary judge erred in finding that respondents' use of the Packaging Logo was otherwise outside the scope of s 120(1) and (2) of the Act – consideration of whether Packaging Logo was used in relation to the registered services or services closely related to the registered services or goods closely related to the registered services – whether primary judge erred in finding that respondents' use of the Packaging Logo was in good faith – whether primary judge erred in finding that the use of the Trade Mark was likely to deceive or cause confusion – whether primary judge erred in finding that the Trade Mark was not capable of distinguishing the appellant's services from the services of other persons in relation to the registered services – whether primary judge erred in ordering cancellation of the Trade Mark and not exercising the discretion not to make such an order Held: appeal dismissed