RED BULL GMBH V TOTAL EDEN PTY LTD [2015] ATMO 67 (20 JULY 2015)

Red Bull opposed the registration of the below trade mark under sections 44 and 60.

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The opposed trade mark covered a range of water pumps, pipes and plastic fittings for drains and valves in classes 7, 17, 19 and 20.

The opponent led evidence of its use and prior registration of the below trade mark that covers similar goods to those of the opposed mark.

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In determining that the two trade marks were not deceptively similar, the Hearing Officer approved the applicant’s comment that:

Just because an impugned mark contains the whole of, or a prominent and distinct feature of, a prior mark does not inevitably result in a finding of deceptive similarity. It is necessary to consider the marks as a whole (visually and aurally) and all surrounding circumstances.

Weighing into the Hearing Officer’s consideration was the nature of the goods (being somewhat specialised in nature), the notable visual differences, and the relative fame of the opponent’s trade mark (which the Hearing Officer found would actually reduce the risk of confusion).

On section 60, the Hearing Officer noted that there was an obvious reputation held by the opponent in its trade mark, but not directly in relation to the goods at issue. Accordingly, having found that the trade marks were not deceptively similar, the Hearing Officer was able to conclude that there was no likelihood of consumer deception or confusion.

The application is to proceed.

To view the Office decision, click here.