DNA Products Aust Pty Ltd v Botany Essentials Pty Limited [2013] ATMO 82


DNA Products Aust Pty Ltd opposed the registration of a trade mark for DNA SERUM within a double helix (reproduced below) covering cosmetics.

The opponent pressed grounds under sections 41, 43, 44, 58A and 60. However, the Hearing Officer gave little consideration to any of the grounds other than section 60, on which the opponent was successful.

As a licensed user of Australian Trade Mark Registration No. 823900 for DNA (in relation to cosmetics), the opponent demonstrated use of the DNA trade mark in a number of forms since around 1997 and use of the trade mark DNA with a double helix since 2008.

As with most section 60 cases, the opponent succeeded largely on the basis that it has consistent use supported with ‘significant’ advertising and revenue figures. The opponent was found to have shown its reputation in the plain word mark DNA and, to a lesser extent, a reputation in a trade mark with DNA and a helix device, represented below.

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