Bill McKay v Amberley Estate Pty Ltd

This matter concerned an opposition by Bill McKay to the trade mark application of Amberley Estate Pty Ltd for the word trade mark "A AMBERLEY". The application sought registration for wines, spirits, and liqueurs in Class 33, and for various retail and restaurant services in Classes 35 and 42. The opponent, Mr. McKay, filed a notice of opposition on the grounds that the logos were the same and that public confusion would arise.

The delegate of the Registrar of Trade Marks was required to determine whether the grounds of opposition had been established. Specifically, the delegate had to consider whether the applicant's trade mark was substantially identical with or deceptively similar to the opponent's registered trade mark, as required by section 44 of the *Trade Marks Act 1995* (Cth). The delegate also had to consider the onus on the opponent to establish the grounds of opposition, particularly in the absence of any evidence filed in support.

The delegate noted that no evidence had been filed by the opponent to support the claims of similarity or public confusion. Applying the principles from *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd* and *Australian Woollen Mills Ltd v FS Walton & Co Ltd*, the delegate compared the two trade marks. The delegate found that while both marks featured a prominent letter "A", the applicant's mark was simple and contained the word "AMBERLEY", whereas the opponent's mark was complex, featuring grapes, vines, urns, and the words "ABBEY VALE". The delegate concluded that the marks were neither substantially identical nor deceptively similar, and therefore, section 44 of the Act did not provide a ground for rejection.

As none of the grounds of opposition were established, the delegate dismissed the opposition and directed that the application proceed to registration, subject to any appeal.