Brown Nose Day v Red Nose Day: A Trade Mark Battle Won by a Nose - Ep 37
What happens when IP Australia registers a trade mark—and then changes its mind?
In this episode of Elise Explains IP, we unpack the wonderfully unusual dispute between BROWN NOSE DAY and the earlier RED NOSE DAY trade marks.
Both names use a colour followed by the words NOSE DAY. Both relate to charitable fundraising. At first sniff, they may appear uncomfortably close.
However, the Full Federal Court concluded that the marks were not deceptively similar. The familiar expression “brown nose” gave BROWN NOSE DAY its own distinct meaning and created a different overall impression from RED NOSE DAY.
The decision also considers an important and relatively unusual issue: when the Registrar of Trade Marks can revoke a trade mark after it has already been registered.
In this episode
Elise explains:
- How BROWN NOSE DAY came to be registered for charitable fundraising services
- Why IP Australia later attempted to revoke the registration
- How courts decide whether two trade marks are deceptively similar
- Why trade marks must be considered as a whole
- How meaning, appearance, sound and imperfect recollection affect the comparison
- Why the expression “brown nose” helped distinguish the later mark
- When section 84A of the Trade Marks Act 1995 allows the Registrar to undo a registration
- Why acceptance or registration does not guarantee that a trade mark will never be challenged
- The value of conducting proper clearance searches before committing to a brand
- Why registered trade mark owners should monitor new applications
The case
Registrar of Trade Marks v National Cancer Foundation Limited [2026] FCAFC 95.
The Full Federal Court dismissed the Registrar’s appeal and allowed the BROWN NOSE DAY registration to remain.
The Court found that BROWN NOSE DAY was not deceptively similar to the earlier RED NOSE DAY marks. Consumers were likely to understand “brown nose” as a familiar expression, rather than viewing the name as simply another colour in a series of NOSE DAY campaigns.
The decision also confirms that the Registrar’s post-registration revocation power can extend to errors of judgment. However, determining whether a registration was legally wrong and deciding whether revocation would be reasonable are separate questions.
You can access the Federal Court’s online case file.
Practical takeaways
A trade mark comparison involves more than counting the words two names have in common. The real question is the overall impression each mark creates for an ordinary consumer who may have only an imperfect recollection of the earlier mark.
Before adopting a new brand:
- Search for similar marks, not only exact matches
- Consider similarities in sound, meaning, appearance and structure
- Think about whether consumers might assume the brands are connected
- Avoid making a substantial investment in a name before understanding the risks
- Monitor new trade mark applications after securing registration
- Keep records of important branding, ownership and licensing decisions
Registration remains an enormously valuable form of protection, but it is not a substitute for careful clearance work and an ongoing brand protection strategy.
Sometimes a small change will not be enough to avoid confusion. At other times, one carefully chosen word completely changes the scent of the mark.
Need help protecting a new brand?
If you are developing a new brand, preparing to file a trade mark application or concerned about a similar name appearing in the market, you can book an IP Strategy Call with Elise at elisesteegstra.com.
Listen to the episode and follow Elise Explains IP for practical explanations of the intellectual property issues affecting businesses, founders and creatives.
Disclaimer: This podcast is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this episode.
