Aquarian Foundation, Inc v Bruce Lowndes

The Aquarian Foundation, Inc. (the opponent) opposed the registration of a trade mark by Bruce Lowndes (the applicant) under section 52 of the *Trade Marks Act 1995* (Cth). The dispute concerned the applicant's proposed registration of the trade mark "AQUARIAN" in relation to services including the provision of training and education in the field of astrology and related spiritual and personal development. The opposition was heard by Timothy Brown, acting as delegate for the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the opponent had established any of the grounds for opposition relied upon. These grounds included claims that the applicant was not entitled to registration because the trade mark was not capable of distinguishing the applicant's services from those of others (section 42(b)), that the trade mark was likely to deceive or cause confusion (section 43), that the trade mark was substantially identical or deceptively similar to an earlier trade mark (section 60), and that the applicant had no bona fide intention to use the trade mark in relation to the specified services (section 58). Other sections of the Act, including sections 44, 58A, 61, 62 and 62A, were also considered in the context of the opposition.

The delegate found that the opponent had failed to establish any of the grounds for opposition. In relation to section 42(b), it was held that the opponent had not demonstrated that the trade mark was incapable of distinguishing the applicant's services. The delegate also concluded that there was no likelihood of deception or confusion under section 43, nor was the trade mark substantially identical or deceptively similar to any earlier trade mark under section 60. Furthermore, the delegate was satisfied that the applicant had a bona fide intention to use the trade mark in relation to the services for which registration was sought, thereby dismissing the section 58 ground.

Consequently, the delegate ordered that the opposition be dismissed and that the applicant's trade mark proceed to registration.