Apple Computer v TodayTech Group Pty Ltd

This matter concerned an opposition by TodayTech Group Pty Ltd (the opponent) to an application by Apple Computer (the applicant) for registration of a trade mark. The opposition was heard by Debrett Lyons, a Hearing Officer in the Trade Marks Hearings.

The primary legal issues before the Hearing Officer were whether the applicant's trade mark should be rejected under section 44 of the *Trade Marks Act 1995* (Cth) due to its substantial identity or deceptive similarity to registered trade marks owned by the opponent, and whether the opposition should succeed under section 60 of the Act. The opponent also initially raised grounds under sections 42(b) and 43, but these were not pursued in substantive submissions.

The Hearing Officer considered the requirements for an opposition under section 44(1), which necessitate proof of a registered or pending mark with an earlier priority date, and that the applicant's mark is substantially identical or deceptively similar to that other mark in relation to similar goods or closely related services. The opponent relied on its registrations for MACINTOSH and MAC. The Hearing Officer found that the opponent's registrations pre-dated the applicant's priority date. However, after examining the evidence and submissions, the Hearing Officer concluded that the ground under section 44 failed, as did the ground under section 60, finding that the opponent had not established the necessary elements for either.

Consequently, the opposition was dismissed. The Hearing Officer directed that the application for registration proceed, subject to payment of the sealing fee and any orders made in the event of an appeal. The opponent was ordered to pay the applicant's costs.