Brown Nose Day v Red Nose Day: When Are Trade Marks Too Similar?

What happens when two trade marks share the same basic structure, cover the same services and differ by only one colour?

That was the question at the heart of the dispute between BROWN NOSE DAY and the earlier RED NOSE DAY trade marks.

At first sniff, the names appear remarkably close. Both combine a colour with the words NOSE DAY. Both relate to charitable fundraising. Red Nose Limited had also registered several variations of its mark using different colours.

However, the Full Federal Court concluded that BROWN NOSE DAY was not deceptively similar to RED NOSE DAY.

The decision is a useful reminder that comparing trade marks involves more than counting the words they have in common. The Court considers the overall impression created by each mark—including its appearance, sound and meaning.

The case also explores a less common question: when can IP Australia revoke a trade mark after it has already been registered?

How BROWN NOSE DAY came to be registered

The National Cancer Foundation raises funds to support cancer prevention and treatment.

In 2020, it developed the BROWN NOSE DAY name as part of a bowel cancer fundraising and awareness initiative. The name was deliberately provocative. It used humour to draw attention to a serious health issue that people may otherwise feel uncomfortable discussing.

The Foundation applied to register BROWN NOSE DAY as a trade mark for charitable fundraising services.

During the examination process, IP Australia identified several earlier trade marks owned by Red Nose Limited. These included RED NOSE DAY and other registrations combining NOSE DAY with colours such as white, black, blue, yellow and green.

The earlier marks were therefore not overlooked. The examiner considered them and concluded that BROWN NOSE DAY was sufficiently different to proceed.

The application was accepted and advertised. No opposition was pursued during the formal opposition period, and BROWN NOSE DAY was registered in December 2020.

That might ordinarily have appeared to be the end of the examination process.

It was not.

When IP Australia changed its mind

In October 2021, Red Nose Limited asked the Registrar of Trade Marks to revoke the BROWN NOSE DAY registration.

The Deputy Registrar subsequently notified the National Cancer Foundation that the Registrar proposed to do exactly that.

IP Australia’s revised position was that BROWN NOSE DAY was substantially identical with, or deceptively similar to, the earlier RED NOSE DAY marks. On that reasoning, an objection should have been raised during the original examination.

Following a hearing, a delegate of the Registrar revoked the registration in February 2023.

The National Cancer Foundation appealed to the Federal Court. A single judge allowed the appeal and restored the registration. The Registrar then appealed to the Full Federal Court.

The result was Registrar of Trade Marks v National Cancer Foundation Limited [2026] FCAFC 95.

Can IP Australia revoke a registered trade mark?

Section 84A of the Trade Marks Act 1995 gives the Registrar a limited power to revoke a trade mark after registration.

Before exercising that power, the Registrar must be satisfied of two things:

1. The trade mark should not have been registered, having regard to the circumstances that existed when it was registered.
2. It is reasonable to revoke the registration, having regard to all the circumstances.

The registered owner must also be notified of the proposed revocation within 12 months after registration.

The power is not confined to clerical errors or situations where an earlier trade mark was completely overlooked. It can extend to an error of judgment.

The Full Court confirmed that deceptive similarity is ultimately a legal question with one correct answer. A comparison may be difficult or finely balanced, and reasonable people may reach different views, but the mark is either deceptively similar or it is not.

If a mark was deceptively similar to an earlier registration and no exception applied, its registration was legally incorrect—even if the original examiner’s conclusion was understandable.

However, identifying an error is only the first step.

The circumstances surrounding that error may still affect whether it is reasonable to revoke the registration. Relevant considerations could include the owner’s reliance on the registration, its use of the mark, related legal proceedings and the nature of the original error.

In other words, the first question is whether the registration passes the legal smell test. The second is what should practically be done if it does not.

Were BROWN NOSE DAY and RED NOSE DAY deceptively similar?

Two trade marks are deceptively similar where one so nearly resembles the other that it is likely to deceive or cause confusion.

The test does not require evidence that consumers have actually been confused. The question is whether there is a real and tangible risk that an ordinary consumer might wonder whether the two services come from the same organisation or from organisations that are connected.

Importantly, the marks are not compared side by side.

The law allows for imperfect recollection. A consumer may remember the general impression of an earlier mark without recalling its exact details.

The marks must also be considered as a whole. It is usually unhelpful to pull them apart, isolate their shared elements and treat those similarities as decisive.

That became the critical point in this case.

Why “brown nose” changed the overall impression

The Registrar argued that the earlier marks established a distinctive pattern: a colour followed by NOSE DAY.

On that basis, BROWN NOSE DAY could be understood as another member of the same family of marks—a brown variation of RED NOSE DAY.

The services were the same, the words NOSE DAY appeared in both marks and Red Nose Limited owned registrations for several different colour variations. There was therefore some force behind the argument.

However, the Full Court agreed that this approach risked breaking BROWN NOSE DAY into artificial components.

“Brown nose” is a familiar expression with its own meaning. To brown-nose someone is to flatter them excessively or attempt to curry favour.

Consumers were therefore likely to understand BROWN NOSE as a complete phrase, rather than reading the mark as the colour BROWN followed by NOSE DAY.

RED NOSE also carries its own distinct associations, particularly with clowns and comedy.

Those differences in meaning changed the overall impression created by the respective marks. The Court concluded that consumers were unlikely to see BROWN NOSE DAY merely as another colour in a series of NOSE DAY campaigns.

Sometimes one carefully chosen word really can change the whole scent of a mark.

The importance of colour and consumer attention

The Court also considered expert evidence about the way colours are used in charitable fundraising and awareness campaigns.

Australian consumers are accustomed to distinguishing between campaigns by reference to colour and other prominent features. Campaign names commonly combine a colour, object or cause with a day, week or month.

In that setting, the word “day” did relatively little to distinguish one campaign from another. Colour could carry greater significance.

The nature of the service also mattered.

Charitable donations tend to involve a degree of consideration. A person deciding which organisation to support may pay closer attention to its identity than someone making a small, routine purchase.

That did not give charitable organisations a special exemption from trade mark law. It was simply part of the context in which the likely risk of confusion had to be assessed.

Ultimately, the Court regarded the comparison as finely balanced but concluded that BROWN NOSE DAY was not deceptively similar to the earlier marks.

Because the original registration was not an error, the first requirement under section 84A was not satisfied. The Registrar’s power to revoke the registration was therefore not enlivened.

BROWN NOSE DAY survived the challenge and, you might say, came out in front by a nose.

Why the reputation of RED NOSE DAY did not decide the case

Many Australians will already be familiar with RED NOSE DAY. It may therefore seem surprising that its reputation did not determine whether the marks were deceptively similar.

The statutory comparison focuses on the marks as registered and the services covered by those registrations. It is not a broad inquiry into everything consumers may know about the earlier brand.

Reputation may be relevant to other legal claims, including whether conduct falsely suggests a connection or is misleading or deceptive. However, it cannot automatically be imported into every assessment of deceptive similarity.

This distinction matters because several legal questions may arise when a similar brand enters the market:

• Are the registered trade marks deceptively similar?
• Does the later branding falsely suggest an association?
• Has the earlier owner established a reputation that gives it broader protection?
• Is the later business engaging in misleading or deceptive conduct?

These questions can overlap, but they are not interchangeable. The right evidence and legal pathway will depend on the nature of the dispute.

What should businesses learn from the decision?

1. Compare the whole trade mark

A trade mark assessment is not a word-matching exercise.

Shared words and structures can be important, particularly where they are distinctive. But the comparison also considers sound, appearance, meaning and the overall impression left in a consumer’s mind.

A name that forms a familiar phrase may create a very different impression from another mark containing some of the same words.

2. Search beyond exact matches

A proper trade mark clearance search should identify more than identical names.

It should consider:

• Similar spelling and pronunciation
• Shared concepts or meanings
• Common structures or naming patterns
• The goods and services covered by earlier marks
• Whether consumers might assume that the brands are related

Finding an earlier registration does not necessarily mean that a proposed brand cannot be used. It does mean the risk should be assessed before substantial money is spent on signage, packaging, websites or marketing.

3. Registration is valuable, but not absolute

Registration creates a valuable legal asset, but it does not guarantee that the mark will never be challenged.

An earlier owner may oppose the application, seek revocation within the statutory window, apply to remove the mark or pursue other claims.

Clearance work remains important even where an application has passed examination. Acceptance by IP Australia is not a commercial guarantee that no one else will object.

4. Monitor new applications

Owners of registered trade marks should monitor the Register for new applications that may affect their brand.

The opposition period is often the most efficient time to raise concerns. Once an application has proceeded to registration, the available options may become more complicated and expensive.

Monitoring does not mean opposing every remotely similar mark. Depending on the circumstances, coexistence, amendments to the nominated goods or services, or a negotiated agreement may be more proportionate.

The important thing is having the opportunity to make that decision before the application progresses too far.

5. Keep records of important branding decisions

If a business adopts a name despite an identified risk, it should retain the searches, advice and commercial reasoning behind that decision.

The same applies when a trade mark is transferred, licensed or used by a related entity.

Good records will not necessarily prevent a dispute, but they can stop a difficult situation from becoming even messier.

The final takeaway

BROWN NOSE DAY and RED NOSE DAY shared several obvious features, but those similarities did not determine the result.

The familiar meaning of “brown nose” gave the later mark its own identity and changed its overall impression. Consumers were unlikely to treat it as simply another coloured version of RED NOSE DAY.

For business owners, the broader lesson is straightforward: the strength and availability of a brand cannot be assessed by searching for exact matches alone.

Look at the mark as a whole. Consider what consumers are likely to remember. Search before investing heavily in the brand, and continue monitoring the Register after protection is secured.

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 at elisesteegstra.com.

Disclaimer: This article 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 article.