Blinc Inc v SKNCompany Pty Ltd

Blinc Inc (the Applicant) sought to register a trade mark, which SKNCompany Pty Ltd (the Opponent) opposed. The dispute concerned whether the Applicant's proposed trade mark was substantially identical or deceptively similar to the Opponent's existing trade marks, specifically the "Pinq" mark, under section 44 of the relevant Act. The hearing officer was tasked with determining if the grounds of opposition were established.

The court was required to consider two distinct legal tests: substantial identity and deceptive similarity. For substantial identity, the court had to assess if the marks were identical or nearly so when compared side-by-side, considering their essential features and the overall impression. For deceptive similarity, the court was required to determine if, through imperfect recollection, a consumer of ordinary intelligence and memory might be caused to wonder whether the goods or services offered under the two marks came from the same source.

The hearing officer found that the trade marks were not substantially identical, noting clear visual differences in spelling and the presence of additional descriptive words in the Applicant's mark. However, applying the principles of deceptive similarity, the court reasoned that while there were visual differences, the dominant elements of both marks, "pinc" and "pinq," were phonetically and conceptually identical, both evoking the word "pink" with a misspelling. Considering the context of cosmetics and skincare products, and allowing for imperfect recollection, the court concluded that there was a real and tangible danger of consumer confusion, as a consumer might wonder if the Applicant's product originated from the same source as the Opponent's "Pinq" product. The court also found that the Applicant had not established honest concurrent use or continuous use prior to the Opponent's priority date.

Consequently, the hearing officer found that the Opponent had established its ground of opposition under section 44 of the Act and refused to register the Applicant's trade mark. The Opponent was awarded costs against the Applicant.