Alltype Printing Pty Ltd v Peter Douglas Scott, Catherine Anne Scott and Rhys David Andrew Scott

This matter concerns an opposition by Alltype Printing Pty Ltd to the trade mark application 1044526, filed by Peter Douglas Scott, Catherine Anne Scott and Rhys David Andrew Scott, for the mark "ALLTYPE PRINTING INNOVATORS IN PRINT & DESIGN AND DEVICE". The application sought registration for services including photocopying, document reproduction, desktop publishing, typesetting, printing, and graphic design. The opposition was brought before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's trade mark application should be refused registration under section 44 of the *Trade Marks Act 1995* (Cth) due to its deceptive similarity to an earlier registered trade mark (registration 940121) and its application to services of the same description. The opponent also raised grounds under sections 43, 58, 59, and 60, but these were not pursued due to the opponent's failure to properly serve its evidence.

The delegate determined that the trade marks were deceptively similar, sharing the dominant elements "ALLTYPE PRINTING" and likely to cause confusion among consumers. The delegate also found that several of the services claimed in the application, such as typesetting, printing, duplicating, and graphic design, were either prepress services or services of the same description as those covered by the earlier registration. While the applicant had previously filed evidence of use during examination, it deliberately chose not to serve this evidence on the opponent in response to the opposition. Consequently, the delegate declined to consider this evidence, deeming it procedurally unfair to do so, and found that the ground under section 44(2) had been established.

The delegate refused to register the trade mark application in its current form. However, the application was permitted to proceed to registration for a limited set of services, specifically word processing services, certain secretarial services (direct mailing, telephone answering, typing, and record keeping), marketing services including publication of advertising material, and photography, provided the applicant requested this amendment within one month of the decision, unless a notice of appeal had been filed.