Having established that the trade mark failed the prima facie distinctiveness test, the Hearing Officer turned to whether Bauer had made sufficient use of its trade mark to allow for acceptance under sections 41(5) or 41(6).
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The Atmo Sphere has an integrated Bluetooth speaker with great quality. The s60 ground failed because the delegate was not satisfied the opponent’s evidence established the requisite reputation in its EVO mark prior to the filing date of the applied for EVO Marks.
Your IP: 213.252.244.79 The delegate noted the common occurrence in the market of ‘terre’ or ‘terra’ for wine and the visual prominence of the device element in the opponent’s registered mark, and concluded the applied for mark was not substantially identical with or deceptively similar to this registered mark. However, given the delegate’s finding under s60, the s42(b) ground also failed. The applicant attempted to rely on honest concurrent use to traverse the s44 issue, but its evidence was silent as to whether it was aware of the opponent’s DIMENSION DATA mark at the time of adopting its DIMENSION DIGITAL mark in 2015.
The opponent operated a family owned cooperage business in Bundaberg, Queensland under the SCHMEIDER and SCHMEIDER’S COOPERAGE trade marks and names (with SCHMEIDER also being the surname of the individuals behind this business) from 1982. The evidence pointed to some discussions between the parties concerning ‘Stinger’ or ‘Vodka Stinger’, but there could have been independent creation. Under the s62A bad faith ground, the opponent asserted that the applicant filed the trade mark application after being put on notice of the opponent’s CONCIERGE Marks, but there was no cogent evidence that the applicant’s conduct was unscrupulous, underhand or unconscientious. While this mark was used in close association with FOXTEL, the delegate considered this amounted to the separate use of two distinctive marks. Under the s59 ground, the opponent alleged the applicant lacked an intention to use the applied for mark for all the claimed goods and services, but the evidence relied upon by the opponent (an internet search) was insufficient to establish a prima facie case of lack of intention, so it was unnecessary for the applicant to rebut this. Bauer Consumer Media’s trade mark application for TEST KITCHEN was opposed by Pacific Magazines on grounds under sections 41 and 58A. Unsuccessful opposition by SKF to trademark registration of SKL (Stylised) filed on 3 May 2017 for various bearings in class 7.
The opponent relied on grounds of opposition under ss 42(b), 44, 58 and 60 but failed to establish any ground. There was no reason to exercise discretion and the delegate directed both trade marks to be removed from the Register in their entirety. The opponent prevailed under the s43 ground. The delegate was satisfied the opponent has shown use of the registered mark for batteries and flashlights (torches) and it was also appropriate to exercise discretion to leave the ULTRA MAX mark on the Register for those goods as well as battery chargers and battery holders. The opponent relied on grounds of opposition under ss 42(b), 44, 58, 58A, 59, 60 and 62A but failed to establish any ground. The opponent relied on s44 and specifically its prior trademark registration for TERRE VERDIANE & Device shown below which also covered wine in class 33. Partly successful opposition by Glenvill to an application for removal of its trademark registration for ACH Logo shown below alleging non-use during the 3 years period ending on 10 December 2018.
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