SKYY SPIRITS, LLC V BLUE SKY BREWERY HOLDINGS PTY LTD [2016] ATMO 21

Blue Sky’s application to register the below trade mark for ‘alcoholic beers’ was opposed by Skky Spirits.

Click here to view image.

The opponent led evidence of its use of SKKY, SKKY BLUE, and various other SKKY formative trade marks in relation to its vodka products. Included within its evidence was the opponent’s sales figures from 2003-2010, examples of its advertising efforts and spend from similar periods. All in, the opponent’s evidence left the Hearing Officer in no doubt as to the reputation that the opponent holds in its SKKY BLUE trade mark, noting:

This combination of sales and advertising figures, examples of advertising, reach of the magazine advertising, and third party commentary lead me to be satisfied that SKYY BLUE had a strong reputation in relation to a brewed, malt based alcoholic beverage amongst a significant section of the Australian public at the relevant date.

Having found that there is a reputation in the SKKY BLUE trade mark, the Hearing Officer considered in the likelihood of deception or confusion. The decision was weighed factoring the impression of the respective trade marks as ‘sky blue’ and ‘blue sky’ and the nature of the goods being similar (both being alcoholic beverages) and it was found that there was a likelihood of confusion sufficient for section 60 to apply.

The applicant’s trade mark is to be refused registration.

To view the Office decision, click here.