ASUSTEK COMPUTER INCORPORATION

This decision concerns an application by ASUSTEK COMPUTER INCORPORATION to register a trade mark (the "Trade Mark") which was opposed by the owner of an earlier registered trade mark, the "StrixOS Mark". The StrixOS Mark has an earlier priority date and is registered for similar goods, including computer software. The core of the dispute was whether the Trade Mark was substantially identical or deceptively similar to the StrixOS Mark, which would ordinarily be grounds for rejecting the application under section 44 of the relevant Act.

The legal issues before the court were whether the Trade Mark was substantially identical to the StrixOS Mark, and if not, whether it was deceptively similar to it. The court was required to determine if the differences between the two marks were sufficient to avoid a finding of substantial identity or deceptive similarity, considering the principles of trade mark law regarding comparison of marks and the likelihood of confusion among consumers.

The court reasoned that while both marks shared the element "strix", a distinctive word, the Trade Mark also included "ROG" while the StrixOS Mark included "OS". Applying the principles from *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd* and *Millennium & Copthorne International Limited v Kingsgate Hotel Group Pty Ltd*, the court conducted a comparison of the marks. It found that the addition of "ROG" and "OS" created sufficient visual, aural, and conceptual distinctions between the marks. The court concluded that, when considered as a whole and allowing for imperfect recollection, the differences were substantial enough to make it unlikely that the use of the Trade Mark would deceive or cause confusion among a significant number of persons.

As the court was not satisfied that there were grounds for rejection under section 44 of the Act, it accepted the application to register the Trade Mark. The Registrar was therefore directed to accept the application.