Brands Limited v Liberty Procurement Co. Inc. [2017] ATMO 35 (24 April 2017)


Liberty Procurement applied to register the trade mark BED BATH & BEYOND covering retail services (Class 35).  That application was opposed by Brands Limited pressing sections 58 and 60.

Under section 58, Brands Limited led evidence of its earlier use of a stylised trade mark for BED BATH & BEYOND.  That use was on a New Zealand website and shipments of goods to Australia.  On the New Zealand website, the hearing officer noted that there was nothing within the evidence filed that indicated that the New Zealand website was directed to Australian consumers and, as such, it was of no benefit to Brands Limited on this ground.

In the hearing officer’s view, the shipment of goods to Australia (prior to the filing date of the Liberty Procurement application) did not amount to anything more than a single quilt, the sale of which was not substantiated in evidence.  Overall, the hearing officer concluded that Brands Limited had not used the trade mark BED BATH & BEYOND in Australia prior to the filing of the Liberty Procurement application.  As such, the section 58 ground failed.

Similarly, the section 60 ground failed as the hearing officer was not convinced that sufficient use of the BED BATH & BEYOND trade mark had been evidence by Brands Limited to demonstrate that it has a reputation in that trade mark.

The application is to proceed to registration.

To view the Office decision, click here.

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