COMMONWEALTH & 8ORS V PRIMARY HEALTH CARE LTD [2014] ATMO 92

Primary Health Care Limited filed applications for the mark PRIMARY HEALTH CARE and PRIMARY HEALTH CARE Logo in class 35 in relation to medical centre business management. These applications were opposed by the Commonwealth jointly with the eight states and territories under sections 41, 42 and 43.

Much of the Commonwealth’s evidence centred on government and policy considerations relating to what is considered to be “primary health care”. Primary Health Care’s evidence included declaration from GP’s who used its services and associated the words “primary health care” with them. The marks PRIMARY HEALTH CARE were prominently displayed at each premise operated by Primary Health Care around Australia.

Only considering section 43, the Hearing Officer stated consumers of health care services would firstly, and primarily, view the words PRIMARY HEALTH CARE as a trade mark that denotes a connection between the Applicant and its medical centres. Accordingly, the PRIMARY HEALTH CARE trade marks include a description of services that are not in fact provided by the Applicant. Patients attending these medical centres are:

  1. likely to believe that the Applicant is responsible for the health and medical services provided by practitioners within the medical centres
  2. unlikely to appreciate the Applicant is only responsible for management and administrative services to medical and health practitioners
  3. to be aware of the literal meaning of “primary health care” or as stated in the WHO Alma-Ata Declaration to mistakenly believe the Applicant was in some way associated or connected with government provided, or sponsored, community health initiatives.

The Opposition was upheld.

To view the Office decision, click here.