31 January, 2014

OMS Investments Inc. v DuluxGroup Australia Pty Ltd [2014] ATMO 9

OMS Investments Inc. v DuluxGroup Australia Pty Ltd [2014] ATMO 9

Dulux Group applied to register WEED ‘N’ FEED for a range of goods including fertilisers and fungicides.  The trade mark was originally accepted for registration on the basis of evidence of use, at which time OMS Investments opposed the application.

The opponent pressed only section 41.  The Hearing Officer noted, from the opponent’s evidence, that the expression “weed and feed” was essentially the expression “weeding and feeding” and both would be equally used by traders, unconnected with the parties.

Furthermore, the Hearing Officer found that ‘the bulk of the promotional material before me shows use of its house mark “YATES” with, or in proximity to, the Trade Mark’.  Meaning that the Hearing Officer was not convinced that the applicant’s evidence demonstrated consumers knowledge of the trade mark ‘WEED’N’FEED’ operating on its own.  This factor, coupled with the examples of other traders using very similar terms, lead to the Hearing Officer refused registration of the application.

To view the Office decision, click here.

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