Unilever Australia Limited/and jointly by Unilever Australia Limited and Unilever plc. v The Procter and Gamble Company [2014] ATMO 8


This matter was an opposition to a registration by Unilever to the registration of trade marks PODS (for class 3 laundry stain removers and detergents) and POWER PODS (for class 3 laundry stain removers and detergents as well as class 11 for services including lighting, heating, steam generating, cooking, water supply and sanitary services), applied for by Procter and Gamble.

The opposition was pressed on the grounds that the trade marks did not distinguishing the goods or services, and separately that the applicant did not intend to use the marks.

The evidence of the opponent included materials showing use of the word PODS on its own product as a description of a washing capsule, and in a major ad campaign. The opponent also led evidence of consumer attitude to the word “pods” being used descriptively for single dose washing servings, as compared to capsules.

The trade mark applicant led evidence that it had obtained similar registrations for PODS around the world. The applicant also pointed to evidence of the use of the word PODS as a badge or origin in other instances, such as in confectionary.

The Delegate was not convinced that the word ‘pods’ is or had become a descriptive word to describe a capsule or similar.

Noting also that the POWER PODS mark was a logo mark to be assessed as a whole, the delegate was of the opinion that this mark was also registrable.

The delegate found there to be an intention to use the marks as trade marks, and ordered that the applications proceed to registration.  It does appear, however, as though the matter will be the subject of an appeal to the Federal Court.

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