Body Tease Inc v D & Y International Trading Pty Ltd

In the matter of *Body Tease Inc v D & Y International Trading Pty Ltd*, the applicant sought to register the trade mark "TORSO DEVICE" for clothing. The opponent, Body Tease Inc, opposed this application, arguing that the mark was deceptively similar to its own registered trade mark "TORSO" and that the applicant's use of "TORSO DEVICE" would likely cause confusion among consumers. The case was heard before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's proposed trade mark "TORSO DEVICE" was deceptively similar to the opponent's registered trade mark "TORSO" for the purposes of the *Trade Marks Act 1995* (Cth). This involved an assessment of the likelihood of confusion among the relevant class of purchasers.

The delegate considered the opponent's submissions regarding the reputation of its trade mark in Australia. It was noted that the opponent had made sales in Australia for nearly four years prior to the priority date of the application, which was considered significant given the short lifespan of products in the "fun" market. While absolute sales figures were not large, they were deemed significant within a niche market. Evidence was presented that a witness associated the "TORSO DEVICE" with the opponent and would be confused if another party used a similar mark in Australia for clothing. The delegate also took into account the opponent's expenditure on advertising and promotion.