Bickford's Australia Pty Ltd v Belridge Pty Ltd

This matter came before Jock McDonagh, a delegate of the Registrar of Trade Marks, concerning an opposition by Bickford's Australia Pty Ltd (the opponent) to a trade mark application by Belridge Pty Ltd (the applicant). The dispute centred on the applicant's proposed trade mark, which the opponent argued was deceptively similar to its own registered trade marks, potentially causing confusion among consumers.

The primary legal issue before the delegate was whether the applicant's trade mark was "deceptively similar" to the opponent's registered marks, specifically under section 44 of the relevant legislation. This required a determination of whether the marks, when considered in light of the ordinary consumer's recollection and impression, were likely to lead to confusion. The opponent also raised a ground under section 60, which would be supported if the section 44 ground was established.

The delegate applied the test for deceptive similarity as established in *Shell Company (Aust) Limited v Esso Standard Oil (Aust) Limited*, which involves comparing the impression left by the opponent's mark on the memory of an ordinary person with the impression created by the applicant's mark. The opponent argued that the essential features of both marks were "aqua" and "pure/pura," and that the applicant's mark contained minor embellishments. Conversely, the applicant contended that its mark, "epure*aqua," was distinctive due to the prefix "e" and the separation by an asterisk. The delegate found that the marks were not substantially identical, and after considering the evidence and submissions, concluded that they were not deceptively similar.

Consequently, the delegate dismissed the opposition on all grounds, including those under sections 44 and 60. The applicant was awarded costs, and the trade mark application was permitted to proceed to registration, subject to any appeal.