Opposition by South Corp Brands based on sections 44, 59 & 60 to a number of applications by Winston Wines to register the following marks in classes 32, 33, 35 & 43:
WYNWOODWYNWOOD ESTATE & Device WYNWEST WYNWEST WINE
South Corp Brands is the owner of a number of marks that include the word WYNNS. It first offered “wines” for sale under the mark WYNNS COONAWARRA ESTATE in 1952. South Corp Brands argued that many wines and wineries take their names from their owners or place names, although this could not be said for Winston Wines.
Most of Winston’s Wines are exported to China. For feng shui reasons, the letter W is significant, the prefix WYN has positive meaning, and WOOD is a reference to grape vines and the wine making process.
The Hearing Officer determined that the prefix WYN was distinguishable from the mark WYNNS. While WYNNS is a well-known brand in relation to “wines”, confusion was unlikely to occur. Accordingly sections 44 and 60 were not made out.
In regard to section 59, South Corp Brands pointed to a lack of intention by Winston Wines to use their trade marks arguing they were “alternatives”. However, the Hearing Officer, relying on the relevant intention discussed in the Aston case, considered that Winston Wines did intend to use their marks. Section 59 was not made out.
Opposition fails on all grounds.
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.
Principal / Solicitor / Trade Mark Attorney
Litigation Team, Trade Marks Team
Associate / Trade Mark Attorney
Trade Marks Team