Applicant for the below trade mark covering sports supplements opposed by Universal Health (owner of the second mark below) pursuant to sections ss 41, 42(b), 43, 44, 58 and 60.
The opponent appears to have argued sections 41 and 43 in relation to its prior mark. Naturally, these grounds were quickly dismissed by the Hearing Officer.
Section 44 appears to have been argued largely on the point that the opponent’s prior mark was initially cited against the applicant’s trade mark. The initial objection was overcome on the basis that there had been honest concurrent use of the applicant’s trade mark. The evidence submitted in relation to the application was also consider by the Hearing Officer who agreed that the applicant’s mark ‘is indeed deceptively similar’ to the opponent’s prior mark, however, he also agreed that is was appropriate for the applicant’s trade mark to be accepted on the grounds of section 44(3)(a) (honest concurrent use).
The applicant’s trade mark is to proceed to registration.
To view the Office decision, click here.
This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.
Principal / Solicitor / Trade Mark Attorney
Litigation Team, Trade Marks Team
Associate / Trade Mark Attorney
Trade Marks Team