26 September, 2014

BilyaraVinyards Pty Ltd v Guorong Xu [2014] ATMO 56 (13 June 2014)

BilyaraVinyards Pty Ltd v Guorong Xu [2014] ATMO 56 (13 June 2014)

This matter concerned an opposition to the registration of a trade mark in the name of Gourong Xu, and opposed by Bilyara (the proprietor of the Wolf Blass range of wines). The registration applied for and opposed was in respect of the following device marks for various alcoholic beverages.

bilyaravinyards pty ltd

The Opponent asserted the section 60 ground that the mark sought was similar to a mark that had already gained a reputation in Australia, and referred to its own portfolio of trade marks, including:

bilyaravinyards pty ltd

The Delegate noted that the evidence led by the Opponent showed a wide collection of wines being sold by the Opponent, all of which featured a perched eagle device. While there was some deviation in the labelling of the different lines of products, the common element was a perched eagle. In terms of sales, the Opponent’s products were shown to have obtained gross sales in the eight years prior of $100,000,000.

The Delegate also noted that both the Applicant’s marks and the Opponent’s marks seemed very ‘Germanic’. All things considered the Delegate found that the wine consuming public was likely to associate images of a perched eagle with its wings outstretched with the Opponent’s wines.

The application to register the mark 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.


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


Associate / Trade Mark Attorney
Trade Marks Team
Sydney, Australia


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