Daylesford and Hepburn Mineral Springs Co. Pty Ltd v Australian Armaco Pty Ltd [2015] ATMO 107


The four trade marks below were applied for by Australian Armaco covering beverages in Class 32 and opposed by Daylesford and Hepburn Mineral Springs.

The opponent pressed section 41 on the grounds that the ‘DAYLESFORD’ element of the above trade marks is the distinct element that carries the overall marks. There was no dispute that ‘Daylesford’ was a place and on its own would not be capable of registration. However, the Hearing Officer noted the overall level of stylisation and additional elements in support of the view that the trade marks were sufficiently distinctive.

In addition, the opponent attempted to argue that the use and registration of the applicant’s marks would be contrary to law and likely to lead to consumer deception or confusion, as the goods covered under the applications may not originate from the Daylesford area.

Weighing a number of factors, including that the opponent’s own trade mark (which contains ‘Daylesford’) is not limited in any way, the Hearing Officer took the view that it was not likely that the applicant’s trade mark would lead to consumer deception or confusion as a result of the element ‘Daylesford’.

The opposition failed on all grounds.

To view the Office decision, click here.

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