Belvedere v Negro International Pty Ltd

This matter concerned an opposition by Belvedere to the registration of the trade mark SOBIESKI by Negro International Pty Ltd. Belvedere, a French holding company, claimed to control the distribution of a Polish vodka sold under the SOBIESKI trade mark, which it asserted had been available internationally since 1999 and first produced in June 1998. Belvedere alleged that Negro's application to register the same trade mark was likely to deceive or cause confusion, relying on grounds including section 60 of the *Trade Marks Act 1995* (Cth). Negro, an Australian company dealing in food products and alcoholic beverages, contended that the trade mark SOBIESKI originated from a family brainstorming session in early to mid-1998, after which they conducted research.

The primary legal issue before the Hearing Officer was whether Negro's proposed registration of the trade mark SOBIESKI was likely to deceive or cause confusion, thereby infringing section 60 of the *Trade Marks Act 1995* (Cth). This section prohibits the registration of a trade mark if its use would be likely to deceive or cause confusion. The court was required to assess the evidence presented by both parties regarding the origin, use, and potential impact of the SOBIESKI trade mark in the Australian market.

The Hearing Officer found that Belvedere had not established any of the four grounds of opposition it relied upon. In assessing the evidence, the Hearing Officer noted discrepancies in Belvedere's documentary evidence concerning the date of notification and the specific trade mark mentioned. Regarding Negro's evidence, the Hearing Officer accepted that the brainstorming session for the trade mark occurred in early to mid-1998, and that SOBIESKI was not in use by Belvedere prior to June 1998. The Hearing Officer concluded that the question of whether a mark is likely to deceive or cause confusion is ultimately a matter of impression and common sense, and that Belvedere had not convinced him of such a likelihood.

Accordingly, the Hearing Officer ordered that the trade mark application by Negro International Pty Ltd may proceed to registration one month from the date of the decision, unless a notice of appeal was filed. Belvedere was ordered to pay Negro's costs, limited by the regulations.