Australian Boutique Markets Pty Ltd v Rachael Zelensky and Jeffrey Zelensky. [2013] ATMO 97


Australian Boutique Markets opposed the Zelensky’s application for the below trade mark on grounds pursuant to sections 41, 42, and 60.  The opponent was not successful on any of the grounds pressed.

The opponent argued that under section 41 the applicant’s trade mark was not capable of distinguishing.  However, the Delegate formed the view that the trade mark’s intricate vine device was ‘not a mere embellishment or flourish such that when considered overall the Applicant’s Trade Mark is inherently adapted to distinguish’.

Under section 42(b), the opponent alleged that use of the applicant’s mark would amount to copyright infringement and the registration of the mark may, therefore, be contrary to law.  The Delegate was unable to find in the opponent’s favour as it ‘[fell] at the first hurdle’ by not establishing that it owned the relevant copyright.

Turning to section 60, the opponent was able to produce some (minimal) evidence of use of a similar trade mark in relation to a market that was held on 12 December 2010.  The Delegate noted that it is a natural assumption that the materials produced by the opponent would have been distributed prior to the event.  However, the opponent was unable to establish any evidence of the exact dates of use prior the applicant’s priority date (3 December 2010). As such, the opposition failed on this ground also.

Back to Articles

Contact our Expert Team

Contact Us