09 May, 2014
Spruson

Qantas Airways Limited v Luke Edwards [2014] ATMO 40

Qantas Airways Limited v Luke Edwards [2014] ATMO 40

Flying Kangaroo grounded in shirt-less incident.

Qantas Airways Limited opposed an application by Mr Luke Edwards for the below trade mark in relation to clothing in Class 25:

lukeedwards

The opponent is the owner of a plethora of prior trade marks that include the silhouetted image of a flying (or hoping) kangaroo. Of these, the opponent submitted that the below trade mark was substantially identical to the applied for mark:

qantas

The Hearing Officer did not agree and noted that a side-by-side comparison revealed a number of ‘significant differences’ between the two marks.

On the matter of deceptive similarity the Hearing Officer noted the many examples provided by the applicant of various traders using the silhouetted image of a kangaroo in relation to clothing. Accordingly, the Hearing Officer found it appropriate to discount, to a large extent, this element of the trade marks and focus on the differences.

Following this logic, the Hearing Officer found ‘it difficult to accept the Opponent’s contention that the quite different background shapes in each mark are for some reason not significant when the marks are compared as wholes’. The Hearing Officer came to the view that the overall impression created by both trade marks was not one of deceptive similarity.

This logic was also followed in relation to the consideration under section 60, where the Hearing Officer was again not satisfied, largely on the basis of other traders using silhouetted kangaroos, that there was a sufficient likelihood of deception or confusion arising.

The opposition failed and the application will proceed to registration.

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.


KHAJAQUE KORTIAN

Principal / Solicitor / Trade Mark Attorney
Litigation Team, Trade Marks Team
Sydney, Australia

DANIEL WILSON

Trade Mark Attorney
Trade Marks Team
Sydney, Australia

JARED BENNETT

Solicitor
Commercialisation Team
Sydney, Australia

 

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