Baxter Pty Ltd carried on a direct marketing and data processing business in Australia. From 20 January 2014, it became the registered owner of the 'BAXTER' trade mark in respect of certain services in Class 35 'advertising; business management, organization and administration; office functions' and Class 42 'scientific and technological services and research and design relating thereto'.

During the COVID19 pandemic, Baxster Direct Mail Pty Ltd has been carrying business on direct mail services (advertising mail/letterbox drop), by reference to marks namely 'Baxster Direct' and 'Baxster' since January 2020. On 2 February 2022, Baxster applied to register the 'BAXSTER' as a trade mark in respect of marketing services and business marketing in Class 35.

Questions:

1. To prevent Baxster Direct Mail Pty Ltd from registering the word 'BAXSTER' in Class 35, what action is available and how to prove that 'BAXSTER' is not registrable? (10 marks)

2. Whether Baxster Direct Mail Pty Ltd has infringed the registered trade mark 'BAXTER' owned by Baxter Pty Ltd? (10 marks)