This decision concerned an opposition filed by Apple Inc under section 52 of the Trade Marks Act 1995 to the registration of the trade mark filed by Metropage Pty Ltd, being the word IBAD in respect of class 9 for public electronic information display terminals. The application was opposed on several grounds.
On one ground Apple argued that the application was similar to a trade mark that had acquired a reputation in Australia, as contemplated by section 60, referring to its own mark for IPAD.
In considering this argument, and whether there was a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source, the Delegate found that the products for which the trade mark was sought to be registered and as described in evidence were so similar as to be likely to cause confusion.
It was argued by the trade mark applicant that the reputation in the IPAD mark was so extensive that it militated against confusion; that the average person knew the iPad very well and would not be so confused as to believe there to be a relationship with Apple. This argument was not accepted.
The other grounds that were raised, including under section 62A that the mark was applied for in bad faith, were not considered. The opposition was accepted and the Delegate refused the registration of the trade mark the subject of the application.