Alan Weller v Big Country Developments Pty Ltd

This matter concerned an opposition by Big Country Developments Pty Ltd ("the opponent") to two trade mark applications by Alan Weller ("the applicant") for the word "Fridays" in fancy scripts, for services described as "a discotheque". The opposition was brought under sections 49(1) and 40 of the *Trade Marks Act 1955* (Cth), on the grounds of alleged lack of proprietorship by the applicant and the likelihood of deception and confusion arising from the applicant's use of the mark.

The delegate was required to determine whether the opponent had established proprietorship of the mark "T.G.I. Friday" in Australia prior to the applicant's lodgement date of 19 December 1985, and whether the applicant's proposed use of "Fridays" would be likely to deceive or cause confusion. The opponent's claim to proprietorship rested on its alleged use of "T.G.I. Friday" in connection with its Raby Tavern.

The delegate considered evidence presented by the opponent, including photographs and advertisements, in light of established legal principles regarding trade mark proprietorship and use. The delegate adopted the reasoning of a previous delegate who had considered similar evidence, finding that the opponent's use of "T.G.I. Friday" on a door and in advertisements did not constitute use as a trade mark designating services in a manner likely to lead to the belief that the services were connected in the course of trade to the opponent. The delegate noted that the use was more akin to a name for a part of the tavern or a timetable of events, rather than an indicator of trade origin. Furthermore, the delegate found that the opponent's mark was not identical or substantially identical to the applicant's mark, and there was no evidence that the public would equate the two. Consequently, the delegate concluded that the opponent had not established proprietorship under section 40 of the Act.

Regarding the ground of deception and confusion under section 28, the delegate found that the opponent had not provided sufficient evidence of the extent of circulation of its advertisements or its reputation in the mark. The delegate also agreed with the applicant that the manner of use by the opponent would have minimised any possibility of deception. Therefore, the opposition was dismissed, and costs were awarded to the applicant.