Bavaria NV v Bayerischer Brauerbund eV [2009] FCA 428

FEDERAL COURT OF AUSTRALIA

Bavaria NV v Bayerischer Brauerbund eV [2009] FCA 428

INTELLECTUAL PROPERTY – trade mark – opposition to registration under Trade Marks Act 1995 (Cth) – applicant seeks registration of composite trade mark in respect of beer and other beverages – trade mark includes the word BAVARIA, three references to "Holland" and a number of non-word elements – whether trade mark capable of distinguishing applicant's goods – whether trade mark inherently adapted to distinguish – whether use of trade mark would be likely to deceive or cause confusion or be contrary to law – evidence that Australian consumers would not draw a link between the word "Bavaria" and the German State as the origin of the beer – evidence that Australian consumers would not think that the applicant's beer has characteristics attributable to a Bavarian origin – whether trade mark contains or consists of a sign that is a geographical indication – sign must be recognised in country of origin – modes of recognition – whether "Bavaria" equates with recognised signs – whether defence in s 61(2)(c) available – whether there is discretion in s 55 of the Act to refuse registration of a trade mark where no ground of opposition is made out

Commerce (Trade Descriptions) Act 1905 (Cth) Trade Marks Act 1995 (Cth) ss 6, 41, 42(b), 43, 55, 59, 61, 92(4)(b) Trade Practices Act 1974 (Cth) s 52, 53(a), 53(c), 53(d), 53(eb)

Angelides v James Stedman Hendersons Sweets Limited (1927) 40 CLR 43 considered Apand Pty Limited v The Kettle Chip Company Pty Limited (1994) 52 FCR 474 considered Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) (2008) 75 IPR 557 cited Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 cited Chancellor, Masters and Scholars of the University of Oxford (Trading as Oxford University Press) v Registrar of Trade Marks (1990) 24 FCR 1 referred to Clark Equipment Company v Registrar of Trade Marks (1964) 111 CLR 511 considered Colorado Group Ltd v Strandbags Group Pty Ltd (2007) 164 FCR 506 referred to ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 cited Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd (2004) 209 ALR 1 considered Pfizer Products Inc v Karam (2006) 237 ALR 787 cited Polo Textile Industries Pty Limited v Domestic Textile Corporation Pty Limited (1993) 42 FCR 227 cited Re The Registered Trade Mark "Yanx"; ex parte Amalgamated Tobacco Corporation Limited (1951) 82 CLR 199 cited Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 cited Scotch Whisky Association v De Witt (2007) 74 IPR 382 referred to Sports Cafe Ltd v Registrar of Trade Marks (1998) 42 IPR 552 considered