Heinz obtained acceptance of its trade mark SOUP OF THE DAY (for soups) after an initial objection was raised under section 41(5) by the Trade Marks Office. Campbell Soup opposed the registration of the trade mark under the same ground.
The Hearing Officer was satisfied that other traders would have a legitimate desire to use the trade mark SOUP OF THE DAY in relation to soups. As such, the opposition would turn on whether Heinz had made sufficient use of its SOUP OF THE DAY trade mark for it to have acquired a secondary meaning in the Australian marketplace.
Whilst Heinz was able to lead evidence of its use of the trade mark, portions of its use included the house brand HEINZ and even some material that referred to the trade mark as HEINZ SOUP OF THE DAY. Whilst this was not fatal to Heinz’s chances, the Hearing Officer did note that this, to some extent, diluted the Heinz’s use of the trade mark.
Overall, the Hearing Officer was not satisfied that sufficient use of the SOUP OF THE DAY trade mark was made to enable acceptance under section 41(5). The application was refused registration.
To view the Office decision, click here.
This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.
Litigation Team, Trade Marks Team
Trade Marks Team