Akzo Nobel Coatings International B.V. v Brick Appeal Pty Limited

Akzo Nobel Coatings International B.V. (the Opponent) opposed the registration of trade mark application no. 2261488 by Brick Appeal Pty Limited (the Applicant). The opposition was based on grounds under sections 44 and 62A of the *Trade Marks Act 1995* (Cth), with the Opponent alleging that the Applicant's mark was substantially identical or deceptively similar to its own registered trade marks. The Delegate of the Registrar of Trade Marks considered the evidence and submissions presented by both parties.

The primary legal issue before the Delegate was whether the Applicant's trade mark application should be refused registration on the grounds of substantial identity or deceptive similarity to the Opponent's existing trade marks, as contemplated by section 44 of the Act. The Delegate also considered the broader ground of opposition under section 62A, which relates to the registration of a trade mark in bad faith.

In determining the section 44 ground, the Delegate found that the marks in question were neither substantially identical nor deceptively similar. This conclusion was based on a comparison of the visual, aural, and conceptual elements of the respective marks. Having found that the section 44 ground was not established, and noting that no evidence was presented to support the section 62A ground, the Delegate concluded that the Opponent had failed to establish any valid ground for opposition. Consequently, the Delegate directed that the trade mark application proceed to registration, subject to a stay if a notice of appeal was filed. The Opponent was also ordered to pay the Applicant's costs.