What happened?
The a2 Milk Company (a2MC) is a well-known premium dairy brand in Australia.
The promoted virtue of its milk is that it contains the A2 bovine beta-casein protein. Apparently, it’s good for you and you should totally feed it to your kids.
What’s immediately interesting to trade mark people is that against that background, a2MC owns trade mark registrations for “a2 Milk” and logos like this:
The registration of these marks was contested back in 2021 (by a party not involved in this story) but they got home. The key finding back then was that a mark rooted in science is not automatically descriptive. As you’re about to see, that has stood up to further scrutiny.
In this case, a2MC sued a company called Care A2 Plus for its use of A2, A2+ and Care A2+ on infant formula packaging, websites, investor materials and in an event sponsorship. Here’s an example of their product (and this should also be immediately fed to your otherwise malnourished children):
These guys went hard, including sponsoring the Care A2+ Kooyong Classic, a warm-up tennis tournament to the Australian Open, held at its original home back in the days when it was a pre-Christmas suburban grass court tournament that John McEnroe and others didn’t want to play in.
Care A2 fought the claim on two fronts. It denied infringement and pursued a cross-claim seeking to cancel a2MC’s registrations on six grounds of invalidity, including that “a2/A2” was descriptive of milk containing the A2 beta-casein protein and therefore incapable of distinguishing a2MC’s goods. Care A2’s invalidity challenge originally targeted some 50 of a2MC’s marks but was whittled down to the five marks in suit after Care A2 failed to pay security for costs.
So there’s a clue about where this is going.
Who won and why?
a2MC won comprehensively. Justice Rofe found that a2MC’s infringement application was “largely successful” and Care A2’s invalidity challenge was “largely unsuccessful”.
On infringement, the Court held that “A2/A2+” was used as a stand-alone badge of origin on Care A2’s packaging, separate from the word “Care”. The marks were found to be deceptively similar to a2MC’s registrations, with the notional buyer’s imperfect recollection anchoring on “a2/A2” as the dominant, source-distinguishing element. Care A2 attempted a descriptiveness argument as a shield against the infringement claim itself, contending that the “A2/A2+” component of its mark was merely descriptive and would not be perceived by consumers as a badge of origin independent of the word “Care”. It further submitted that because “a2/A2” was descriptive, it should be discounted in the deceptive similarity comparison, such that the parties’ marks shared no other similar features.
Those are rational arguments, but Justice Rofe rejected them. Her Honour found that the descriptiveness contention was not made out and that “A2/A2+” functioned as a stand-alone trade mark, visually dominant on the packaging and plainly designed to distinguish the products from those of other traders. Her Honour also found that Care A2’s infringement was flagrant and awarded additional (punitive) damages.
On invalidity, all six grounds were rejected. Critically, the Court found that “a2/A2” is not directly descriptive of a characteristic of milk products. Instead, it makes an “allusive reference” to the products and their qualities. The marks had acquired factual distinctiveness through extensive sales, advertising and promotion since 2003. Care A2 (apparently running out of steamed froth) filed no expert evidence and did not cross-examine any of a2MC’s witnesses, which can’t have helped its position.
On the ACL claims, the Court found that reasonable consumers encountering Care A2+ branded products would perceive the prominent “A2/A2+” as indicating a connection with a2MC, amounting to misleading or deceptive conduct.
What’s the significance for IP practitioners?
The really interesting thing about this case is the finding that a mark rooted in science is not automatically descriptive, or needed by other proper-motived traders.
Our observations when working with IP Australia at the lower examination level is that the trend has very much been going the other way on that topic in recent times. We’ve noticed examiners improving their skills at finding descriptive uses of words online and that when they do, they raise an objection – often at Australia’s unique high-grade level under section 41(3) of the Trade Marks Act. The arguments about allusive use that were successful here often don’t fly. We recently tried and failed just to get an objection like this downgraded to the low-grade version – much less have it withdrawn altogether.
Noting again that these particular trade marks had already been through the wringer at the Federal Court before achieving registration, meaning that Rofe J would have been required to overturn subject-matter specific (and not just principle specific) precedent in this case, it will be interesting to see whether this judgment will help us in a submission like that next time we give it a go.
For those interested in the full details, the case citation is: Care A2 Plus v The a2 Milk Company Limited (No 2) [2026] FCA 475 (23 April 2026)
