August Storck KG

The Australian Trade Marks Opposition Board (the Board) considered an opposition filed by August Storck KG (the opponent) against the registration of the trade mark "Rolo" (the mark) in the name of a third party (the applicant). The opponent sought to expunge the registration of the mark, alleging that it was substantially identical with or deceptively similar to its earlier trade mark "Rolo" registered for confectionery.

The primary legal issue before the Board was whether the applicant's mark was substantially identical with or deceptively similar to the opponent's registered mark for the purposes of section 60 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the visual, aural, and conceptual resemblance between the two marks, as well as the similarity of the goods in respect of which the marks were registered and used.

The Board applied the established principles for assessing deceptive similarity, including the "imperfect recollection" test and the consideration of the "average consumer" of the goods. It found that the marks were visually, aurally, and conceptually identical. Given that the goods in question, namely confectionery, were also identical, the Board concluded that there was a strong likelihood of deception or confusion among consumers. Consequently, the Board upheld the opposition.