Reckitt Benckiser N.V. (“Reckitt”) opposed Melaleuca, Inc. (“Melaleuca”)’s application No. 732366 to register the mark DIAMOND BRITE in relation to “automatic detergents” in class 3.M
No evidence was filed in the proceeding. In light of this, while a number of grounds of opposition were relied upon by Reckitt, the Assistant Commissioner noted that the grounds based on prior similar marks under sections 25(1)(b) and non-distinctiveness under 18(1)(b) were the key grounds.
Section 25(1)(b) - Reckitt relied on a number of trade mark registrations and applications. However, the Assistant Commissioner noted that only two registrations for FINISH DIAMOND in classes 3 and 1 were applied for by Reckitt before the priority date of the opposed application, and were therefore relevant.
While the Assistant Commissioner noted that some of the goods were similar, it was the Assistant Commissioner’s view that the degree of visual, aural and conceptual similarity between the marks DIAMOND BRITE and FINISH DIAMOND was low. These factors led to the conclusion that confusion was unlikely.
Section 18(1)(b) - Reckitt claimed that the mark DIAMOND BRITE had no distinctive character because Melaleuca’s goods must always be confusingly associated with or connected with Reckitt. This argument was rejected by the Assistant Commissioner given the irrelevance of the degree of similarity between the respective marks when determining the issue of distinctiveness.
Reckitt relied on other grounds of oppositions essentially based on the reputation of its earlier marks. Given the lack of evidence filed by Reckitt, the Assistant Commissioner found that it failed to establish any of these grounds of opposition.
The opposition failed and the Assistant Commissioner directed application No. 732366 be registered.
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