Bon Levi v Levi Strauss and Co

The applicant, Bon Levi, sought to register the trade mark "BON LEVI" for use in relation to clothing. The respondent, Levi Strauss and Co, opposed this application on the grounds that the proposed mark was deceptively similar to its registered trade mark "LEVI'S" and its unregistered trade mark "LEVI", and that registration would be contrary to section 18 of the *Trade Marks Act 1995* (Cth) (the Act) as it would be likely to deceive or cause confusion. The matter came before Ian Thompson, sitting as delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the proposed trade mark "BON LEVI" was deceptively similar to the respondent's trade marks "LEVI'S" and "LEVI" for the purposes of section 44 of the Act, and whether its use would be likely to deceive or cause confusion under section 18 of the Act. This involved an assessment of the visual, aural, and conceptual similarities between the marks, as well as consideration of the goods for which registration was sought and the likely perception of the relevant consumers.

In reaching his decision, the delegate applied the principles established in cases such as *Shell Co of Australia Ltd v Reece Ltd* and *Parke Davis & Co Ltd v. Sanitas (Australasia) Ltd*. He found that while the word "LEVI" was common to both the applicant's and respondent's marks, the addition of the word "BON" in the applicant's mark created a distinct difference. The delegate considered that the average consumer, when presented with the marks in relation to clothing, would not be deceived into believing that the goods originated from the same source or were connected with the respondent. The conceptual difference, with "BON" meaning "good" in French, further distinguished the marks.

Consequently, the delegate dismissed the opposition and ordered that the trade mark "BON LEVI" proceed to registration.