Ampac Pty Limited v Boss Products (Australia) Pty Ltd

Ampac Pty Limited (the applicant) sought to register two trade marks, numbers 2040616 and 2040617. Boss Products (Australia) Pty Ltd (the opponent) opposed these applications. The dispute concerned whether the applicant's proposed trade marks should be registered, with the opponent arguing on several grounds under the *Trade Marks Act 1995* (Cth), including sections 42(b), 43, 44, and 60. The matter was heard by Nicholas Barbey, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The court was required to determine whether any of the grounds of opposition advanced by the opponent were established, and if so, to what extent they affected the registrability of the applicant's trade marks. Specifically, the court had to consider the evidence of the opponent's use of its registered trade mark 'FIREFINDER' in relation to fire detection and alarm systems, and whether the applicant's proposed marks were likely to deceive or cause confusion, or otherwise contravene the provisions of the *Trade Marks Act 1995* (Cth). The relevant date for assessing the rights of the parties was the filing and priority date of each trade mark application.

The Hearing Officer found that the opponent had established the ground of opposition under section 43 of the *Trade Marks Act 1995* (Cth) in relation to all the goods and services for which the applicant sought registration. This finding was based on the evidence demonstrating the opponent's extensive use and significant market share for its 'FIREFINDER' trade mark in the relevant field. The Hearing Officer concluded that the applicant's proposed trade marks were likely to mislead or deceive consumers.

Consequently, the Hearing Officer refused to register both trade mark numbers 2040616 and 2040617. The Hearing Officer also awarded costs against the applicant in respect of trade mark number 2040616, and reduced costs against the applicant in respect of trade mark number 2040617.