Khajaque Kortian has over 25 years of experience in intellectual property law, specialising in litigation and licensing and related areas of consumer law. However, Bauer’s application covered publications and cooking instruction services (Classes 16 and 41) and not physical kitchens. Successful opposition by Univar to trademark registration of the Device mark shown below filed on 9 August 2017 for retail, wholesale and distribution of goods in class 35. The delegate noted the common occurrence in the market of ‘terre’ or ‘terra’ for wine and the visual prominence of the device element in the opponent’s registered mark, and concluded the applied for mark was not substantially identical with or deceptively similar to this registered mark. The s58A ground of opposition was not available given that the applied for mark was not accepted under s44(4) prior continuous use. There was no reason to exercise discretion and the delegate directed both trade marks to be removed from the Register in their entirety. The delegate considered that the reputation of this RUSH RICH mark would survive and lead to confusion. Under the s58 ownership ground, the opponent relied on use of a composite mark containing UBER since September 2015. The word mark registration dated from 21 August 2006 and the logo mark registration dated from 15 February 2010. The evidence pointed to some discussions between the parties concerning ‘Stinger’ or ‘Vodka Stinger’, but there could have been independent creation. The opponent prevailed under the s62A bad faith ground. The opponent was successful in an earlier opposition to registration of the applicant’s RUSH RICH mark which was a translation of the opponent’s PENFOLDS mark in Mandarin characters and included the same design element as shown below. The preparatory steps taken by the opponent did not involve a sign which could be characterised as being substantially identical with the applied for mark. Under the s59 ground, the opponent alleged the applicant lacked an intention to use the applied for mark for all the claimed goods and services, but the evidence relied upon by the opponent (an internet search) was insufficient to establish a prima facie case of lack of intention, so it was unnecessary for the applicant to rebut this.
Unsuccessful oppositions by Fenestration Solutions to trademark registration of three applications for marks containing or consisting of the term EVO filed on 24 August 2016 for wholesaling of building products, hardware, tradesman’s tools and other innovative products in class 35. The delegate directed the MYSCHOOL mark remain on the Register for a restricted specification.
Although the opponent had used this mark overseas, that was insufficient for the delegate to exercise discretion in favour of the opponent and so a direction was given to remove the mark from the Register in its entirety. Under s44, the opponent relied on its prior registrations for trade marks containing the letters SKF. Further, the applied for marks were deceptively similar to the opponent’s DIMENSION DATA word mark registration. Under s44 the opponent relied on a prior registration in class 35 for the mark shown below which was owned by Aoan International Pty Ltd. Stripe, Facebook's fundraising payment processor, distributes each donation after a 7 day hold to reduce risks, such as refunds and negative balances. The Hearing Officer agreed with Pacific Magazine’s submissions on the evidence of use and refused registration of the TEST KITCHEN trade mark under section 41.
The applicant was unable to overcome an objection to trademark registration of CAMP JABIRU filed on 8 November 2018 for various holiday camp and health retreat services in classes 41, 43 and 44. The applicant did not file any evidence and the delegate was satisfied its conduct fell short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons. The applicant association was formed in 2018 and sought to provide surf club services delivered by a local organisation to Peregian Beach.
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1 Atm (atmospheric pressure) is equal to 1.01325 bar. Both registrations covered various apparel in class 25. The delegate declined to exercise discretion in favour of leaving the mark on the Register for services other than those for which use was established. Pacific Magazines Pty Limited v Bauer Consumer Media Limited [2015] ATMO 69 (5 August 2015) Share. There were past dealings between the parties which the delegate characterised as giving rise to a lessor/lessee relationship which ended in disputes.
However, the strength of this reputation worked against the opponent and the delegate was not satisfied there would be a likelihood of confusion amongst persons in the target market for such specialist products.
The opponent relied on s44 and specifically its prior trademark registration for TERRE VERDIANE & Device shown below which also covered wine in class 33.
He represents a wide range of... Khajaque Kortian has over 25 years of experience in intellectual property law, specialising in litigation and licensing and related... Daniel Wilson is a registered Australian trade marks attorney. The opponent also relied on its reputation in the EVO mark under s42(b) to allege that use of the applied for EVO Marks would be misleading or deceptive and contrary to the Australian Consumer Law or constitute passing off.
36,663 Downloads Last Updated: Oct 29, 2019 If you … Unsuccessful opposition by Lidl to an application for removal of its trademark registration for Sol & Mar Logo shown below alleging non-use during the 3 years period ending on 14 November 2018. The opponent prevailed under the s44 ground by relying on its prior registration for the nearly identical device mar shown below which covered distributorship services in class 39. The delegate found CAMP JABIRU is not to any extent inherently adapted to distinguish the applicant’s services from those similar services of other traders.
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The latter does not provide the correct viewpoint from which to gauge ordinary signification since it is already one step removed from the [Goods] themselves”. The delegate commented that the applied for mark is likely to be viewed as either the letters ‘QIY’ surrounded by a box or as the letters ‘iQIY’ surrounded by a box (the ‘l’ in the frame being significantly less noticeable than the ‘i’ element), with some viewers seeing it as ‘QIY’ while others seeing it as ‘iQIY’.
The opponent is the governing body for surf life saving in Queensland. Successful opposition by SLSQ to trademark registration of PEREGIAN BEACH SLSC Logo shown below filed on 14 February 2018 for sports club services in class 41. Spruson & Ferguson companies are members of the IPH Ltd group, and Spruson & Ferguson Pty Ltd and Spruson & Ferguson Lawyers Pty Ltd are part of an ‘ownership group’ for the purposes of the Australian and New Zealand Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2020. It can easily lighten up your darkroom into a colorful heaven. However, given the delegate’s finding under s60, the s42(b) ground also failed. The applicant uses the applied for mark in China in connection with its online video platform which is apparently similar in function to the opponent’s pay television services. However, the Statement of Grounds and Particulars did not mention relying on obstacle to use and so the opponent could not rely on this. Further, the delegate considered the applicant’s claims to distribution, wholesale and retail of goods in class 35 were similar to the distributorship services in class 39 covered by the opponent’s registered mark; although there was no discussion as to why wholesale and retail services were similar to distributor services in class 39. The applicant provides beauty therapy services via a mobile application and owns various trademark registrations for “lux it” or “luxit”.
Partly successful opposition by MySchool to an application for removal of its trademark registration for MYSCHOOL alleging non-use during the 3 years period ending on 15 October 2017. Bauer Consumer Media’s trade mark application for TEST KITCHEN was opposed by Pacific Magazines on grounds under sections 41 and 58A. The supporting evidence of use was insufficient to establish acquired distinctiveness. The opponent relied on grounds under ss 44, 58A and 60, but failed to establish any ground. Daniel’s practice covers all aspects of trade mark registration, protection and enforcement in Australia, New Zealand, Papua New Guinea and... Daniel Wilson is a registered Australian trade marks attorney. Given this, the delegate considered, there is a likelihood that the many consumers familiar with the opponent’s IQ mark in Australia may view the applied for mark used for essentially identical goods and services as the goods and services for which the IQ mark has a reputation and read it as ‘iQIY’ and by reason of the use of the “iQ” element be caused to wonder if the applied for mark denotes goods and services offered by the Opponent.
Further, the relevant goods were relatively specialist items marketed to knowledgeable persons which diminished the risk of confusion.
Consequently, the delegate was not satisfied as to the ‘honesty’ requirement. However, the evidence was insufficient to show that a trade mark containing Aoan had the requisite Australian reputation as at the filing date. Further, ill health was not a sufficient obstacle to use of the registered marks and the delegate referred to Woolly Bull Enterprises Pty Ltd v Reynolds [2001]FCA 261. The opponent prevailed under the s44 ground by relying on its prior registration for the nearly identical device mar shown below which covered distributorship … 16x16 bright and colorful textures. Further, there were other terms available to others to describe the ability to squeeze a mobile device to give it a command.
Under the s62A bad faith ground, the opponent asserted that the applicant filed the trade mark application after being put on notice of the opponent’s CONCIERGE Marks, but there was no cogent evidence that the applicant’s conduct was unscrupulous, underhand or unconscientious. The delegate considered the opponent’s prior trademark registration for EVO in class 35 gave rise to a valid objection under s44, but the applicant could rely on the prior continuous use of its EVO Marks to overcome this. Your IP: 213.252.244.79 The delegate directed the trade mark be removed from the Register except for “Building construction; building construction supervision; providing advice on the planning and construction of home dwellings” in class 37. Bluetooth Speaker. • As a whole, the Trade Mark is likely to have the ordinary signification of a camping ground located in Jabiru.” The delegate was “satisfied that to a sufficient number persons in Australia who will purchase, consume or trade in the Applicant’s Services, the ordinary signification of the Trade Mark is a camping ground located in the vicinity of Jabiru in the Northern Territory.” Further, other traders, particularly those based in Jabiru who might wish to provide similar services, have a legitimate to need for these words to be available. All Rights Reserved. These letters were either stylised, separated by punctuation marks, contained in an image or with an additional word. To convert atm to bar, multiply the atm value by 1.01325. The opponent is in the beauty therapy business. The delegate considered the applied for mark was substantially identical with the opponent’s prior registered mark.
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