Mr Jones filed applications to register the trade marks ARCHIES and ARCHIES Device (shown below) covering orthopaedic goods and footwear in Classes 10 and 25. These applications were opposed by Arche primarily based on its prior registration for ARCHE covering footwear in Class 25.
In coming to the view that the ARCHIES trade marks were not deceptively similar to the ARCHE trade mark, the Hearing Officer took particular note of expert evidence that indicated the respective ARCHIES trade marks would be pronounced ‘AHCHEEZ’, while ARCHE would most likely be pronounced as ‘AHSHAY’ or ‘AHCHAY’. This lead the Hearing Officer to conclude that the phonetic differences between the respective trade marks was significant enough to avoid potential confusion.
In further support of the lack of likely confusion, the Hearing Officer also noted the lack of conceptual similarities between the trade marks (with ARCHIES alluding to the arch of a foot).
On section 60, the Hearing Officer noted Arche’s evidence of use and that its goods are general fashion footwear, whereas Mr Jones’ goods were more specialised orthodic goods. Accordingly, and in keeping with his earlier comments, the Hearing Officer was of the view that there would be no likely deception or confusion to arise between the trade marks.
The opposition failed on all grounds (including sections 42(b) and 58, which were briefly dealt with).
To view the Office decision, click here.
This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.
Litigation Team, Trade Marks Team
Trade Marks Team