This case was an ex parte hearing following an adverse report for the Trade Marks Office examiner.
The Applicant is known by the name LandCorp, and is the WA state government property developer, one of its projects being ‘The Jetty’ development.
There were two marks cited pursuant to s 44 of the Act, both of which were in respect of the word marks, ‘THE JETTY’ for apartments and accommodation services respectively.
The mark was sought for registration in respect of classes 16, 35, 36, and 37, which included real estate and development related services.
The Delegate agreed with the applicant’s submission that the services (apartments and metallic structures – in respect of which the first cited mark was registered), were not the same as nor closely related to the relevant goods and services of the applicant.
In relation to the second cited mark (in respect of real estate services) the Delegate noted that the question under s 44 required consideration of notional use (i.e. a normal and fair use) of all goods and services covered by the application being considered, to consider whether there is a likelihood of confusion.
In reviewing the two marks, the Delegate placed little weight on the ‘Cockburn Coast’ element of the mark as it was a mere geographic indicator which linked the other elements of the trade mark to the particular location.
While the Delegate agreed that the trade marks were not identical, he found that the second cited mark was deceptively similar to the applicants mark.