Bayer Intellectual Property GmbH v Conquest Crop Protection Pty Ltd

Bayer Intellectual Property GmbH (the Applicant) sought to register a trade mark, while Conquest Crop Protection Pty Ltd (the Opponent) opposed this application. The dispute concerned whether the Applicant's proposed trade mark was confusingly similar to the Opponent's existing trade mark, "PRECEPT," used for herbicide products. The matter was heard by Nicholas Barbey, a Hearing Officer in the Trade Marks and Designs division.

The central legal issue before the Hearing Officer was whether the grounds of opposition raised by Conquest Crop Protection Pty Ltd had been established, specifically concerning the potential for confusion between the Applicant's trade mark and the Opponent's registered mark. This involved assessing whether the marks were deceptively similar in appearance, sound, and meaning, and whether the use of the Applicant's mark would be likely to deceive or cause confusion among consumers in the relevant market.

The Hearing Officer's reasoning focused on the evidence presented by both parties. The Opponent provided evidence of significant sales and advertising expenditure for its "PRECEPT" herbicide, suggesting established market presence. However, the Applicant's evidence, including the Morgan Declaration, argued that the marks were not confusingly similar. This evidence highlighted that "precept" does not have a dictionary definition but is pronounced similarly to "precede," and that the ordinary consumer would likely emphasise different parts of each mark. Furthermore, the Applicant demonstrated that numerous other crop protection products registered with the Australian Pesticides and Veterinary Medicines Authority (APVMA) commenced with the prefixes "prec-" or "pres-," indicating that the Opponent did not hold a monopoly on such marks.

Ultimately, the Hearing Officer found that the Opponent had not established any grounds for opposition. Consequently, the trade mark application by Bayer Intellectual Property GmbH was permitted to proceed to registration one month from the date of the decision, unless an appeal was filed. The Hearing Officer also awarded costs against the Opponent in favour of the Applicant, following the general rule that costs follow the event.