Hunter Property opposed the registration of the trade marks AVIDA and AVIDA Device filed be Knott Investments in respect of auto goods and services.
Hunter Property sought to rely on the reputation it held in its VIDA trade mark. However, the counter-argument by Knott Investments was that Hunter Property was not able to demonstrate sufficient use of its VIDA trade mark as it was almost always used in direct connection with the SUNLINER house trade mark (VIDA being a motorised vehicle produced by Hunter Property).
The Hearing Officer noted that the trade marks VIDA and AVIDA were deceptively similar. However, the Hearing Officer also noted that the grounds available to Hunter Property were not section 44, but section 60 and under section 60, it is not sufficient for there to be only deceptive similarity, there must be confusion as a result of reputation.
From the evidence, the Hearing Officer noted an emphasis on Hunter’s SUNLINER trade mark, rather than the VIDA trade mark, but came to the view that there had been ‘trade mark use’ of VIDA. Nevertheless, the Hearing Officer was unable to find that sufficient use had been made of the VIDA trade mark for there to exist a reputation sufficient to support a finding, under section 60, that deception or confusion was likely.
This finding was made despite there being actual instances of confusion at a Queensland trade show and subsequent telephone enquiries made of Hunter. The Hearing Officer noted that these instances of confusion were not due to the reputation of the VIDA trade mark, but merely the proximity of the two entities at a particular trade show.
Ultimately, the Hearing Officer was not presented with sufficient evidence to find that a reputation existed and the opposition did not succeed.
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