Aristocrat Technologies Australia Pty Ltd v Next Generation Entertainment (Aust) Pty Ltd

This matter concerned an opposition by Next Generation Entertainment (Aust) Pty Ltd to an application by Aristocrat Technologies Australia Pty Ltd for the registration of a trade mark. The opposition was based on section 44 of the relevant Act, which deals with identical or deceptively similar trade marks. The opponent argued that Aristocrat's proposed mark was substantially identical with or deceptively similar to its own registered mark, "GOLDEN PYRAMIDS," used in relation to gaming machines.

The primary legal issues before the Hearing Officer were to determine the priority dates of the competing marks, whether the goods in respect of which the marks were registered or sought to be registered were similar, and crucially, whether the trade marks themselves were substantially identical or deceptively similar. It was agreed by both parties that the opponent's registered mark had an earlier priority date and that the goods were similar. The central question therefore revolved around the degree of similarity between the trade marks.

The Hearing Officer found that the trade marks were not substantially identical. The evidence presented by the applicant indicated that the term "pyramid" was used by other traders in the gaming industry, and that "golden pyramids" and "Incan pyramid" were also associated with gaming. The opponent's evidence described gaming machines as having removable artwork panels and changing game software, suggesting that the visual presentation of machines could vary. Ultimately, the Hearing Officer concluded that the opponent had not established the ground of opposition relied upon.

Consequently, the Hearing Officer decided to allow the trade mark application to proceed to registration, subject to a one-month period from the decision date, unless an appeal was filed. The Hearing Officer also ordered that the opponent pay the applicant's costs.