Altana Pharma AG v Oxxon Therapeutics Limited

This decision concerns an opposition by Altana Pharma AG to the registration of the trade mark OXTI, filed by Oxxon Therapeutics Limited. The opposition was based on the ground of deceptive similarity under section 44 of the relevant legislation, alleging that the proposed mark OXTI was deceptively similar to Altana Pharma AG's registered trade mark OXTIVE.

The primary legal issue before the Hearing Officer was whether the trade marks OXTI and OXTIVE were deceptively similar for the purposes of section 44. This required an assessment of the degree of resemblance between the two marks, considering their visual, phonetic, and conceptual aspects, in relation to the goods or services for which registration was sought.

The Hearing Officer found that the two trade marks, OXTI and OXTIVE, were not deceptively similar. In reaching this conclusion, the Hearing Officer applied the principles of deceptive similarity, which involve considering the overall impression of the marks and the likelihood of confusion among consumers. Having determined that no ground of opposition had been established, the Hearing Officer, as the Registrar's delegate, dismissed the opposition.

Accordingly, the Hearing Officer decided to extend protection in Australia for the trade mark OXTI in respect of all goods and services listed in the International Registration Designating Australia (IRDA). This decision was to take effect one month from the date of the decision, unless an appeal was filed, in which case protection would be deferred until the appeal was resolved.