26 September, 2014
Spruson

The Senior’s Choice, Inc v The Seniors Choice (Australia) Pty Ltd [2014] ATMO 51

The Senior’s Choice, Inc v The Seniors Choice (Australia) Pty Ltd [2014] ATMO 51

Application to register the below logo was opposed on grounds pursuant to section 42, that its use would infringe copyright.

the senior's choice

The opponent’s evidence alleged that the applicant proposed to the opponent that a business relationship be formed and that the applicant be permitted to duplicate the opponent’s website and send new franchisees to training with the opponent. The Opponent issued a final response where it indicated that it had no interest in pursuing a business relationship with the applicant.

The opponent’s evidence also detailed the copyright ownership of the following design, known as the ‘heart logo’:

the senior's choice

The opponent’s evidence established that the ‘heart logo’ was designed on commission in 2001 and the copyright subsequently assigned to various entities eventually residing with the opponent. The opponent also attested that it had, at no time, given the applicant permission to use or register the ‘heart logo’.

The applicant did not dispute any of these claims and the Hearing Officer found no reason to not take them as being correct. As such, the use of the applied for trade mark would result in a breach of copyright enjoyed by the opponent in the ‘heart logo’ and the use of the mark would, therefore, be contrary to law. The application was refused.

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

Associate / Trade Mark Attorney
Trade Marks Team
Sydney, Australia

 

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