LAVERANA GMBH & CO. KG V LALISSE AUSTRALIA PTY LTD [2014] ATMO 44

The applicant in this case applied for the mark LAVIENA in respect of class 3 skincare cosmetics and skincare preparations.

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The mark was opposed on the s 44 ground that it was substantially identical or deceptively similar to another registration concerning the same or similar goods.

The Delegate considered that the opponent’s registrations, which included LAVERA on its own as well as with other elements, did cover the same goods in class 3.

The Delegate considered, on a side-by-side comparison that the marks were not substantially identical as there were certain visual and aural differences.

As to whether they were deceptively similar (which is not considered on a side by side comparison and instead from an overall impression of the marks), the Delegate found that there was a real and tangible danger of confusion in this case. This was stated, noting the aural and visual similarities in the mark, as well as the fact that both marks did not have a meaning, as they were both invented words.

The application to register the marks was refused.

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