Bonza Aviation Pty Ltd - [2022] ATMO 188

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Trade mark application numbers 2217809 (classes 35 and 41) and 2253806 (classes 36, 39 and 43) – BONZA – in the name of Bonza Aviation Pty Ltd

Delegate:

Katrina Brown

Representation:

Applicant: Mindaugas Skavronskas of Norton Rose Fulbright

Decision:

2022 ATMO 188

Trade Marks Act 1995 (Cth) – ss 33 & 38 proceedings – s 41 – trade mark is to some extent, but not sufficiently inherently adapted to distinguish – evidence of use sufficient for some designated services – specification of TM 2253806 amended and trade mark accepted – acceptance of TM 2217809 revoked and returned to examination.

Background

This decision is in respect of ex parte proceedings pursuant to ss 33 and 38 of the Trade Marks Act 1995 (Cth) (‘Act’) concerning applications to register the following trade marks:

Trade mark number:	2217809	2253806
Trade mark:	BONZA (‘Claimed Mark’)
Applicant:	Bonza Aviation Pty Ltd (‘Applicant’)
Filing date:	11 October 2021
Designated services:	2217809 Class 35 – Organisation and management of airline frequent flyer programmes; online retail services Class 41 – Entertainment, cultural or sporting event booking or reservation services provided in relation to a customer loyalty or frequent buyer scheme 2253806 Class 36 – Agency services for arranging travel insurance; Collection of payments Class 39 - Airline bookings; Airline check-in services; Airline ticket reservation services; Airline transport; Airline transportation services; Provision of information relating to airline scheduling; Travel reservation services for airline frequent flyer programmes; Holiday travel reservation services; Advisory services relating to travel; Agency services for arranging travel; Air travel services; Booking agency services for travel; Booking agency services relating to travel; Computerised reservation services for travel; Information services relating to travel; Provision of travel services from customer loyalty and frequent buyer schemes; Provision of travel services from frequent flyer schemes; Reservation services for booking seats (travel); Reservation services for travel; Seat reservation services for travel; Services for the arranging of travel; Services for the booking of travel; Ticket booking services for travel; Travel advisory services; Travel booking and reservation services provided in relation to a customer loyalty or frequent buyer scheme; Travel booking and reservation services provided in relation to a frequent flyer scheme; Travel ticket reservation services; Travel information services; Air cargo transport Class 43 - Arranging holiday accommodation; Arrangement of accommodation for holiday makers; Accommodation finding services for travellers; Travel agency services for booking accommodation; Travel agency services for making hotel reservations; Travel agency services for reserving accommodation; Travel agency services for reserving hotel accommodation (‘806 Designated Services’) (collectively ‘Designated Services’)

Trade mark number 2217809

This trade mark application was examined as required by s 31 of the Act. The examiner did not identify any grounds for rejection. The application was accepted on 11 December 2021.
However, on 10 January 2022 a delegate of the Registrar of Trade Marks issued the Applicant a notice proposing to revoke acceptance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] ATMO 188
Decision Date: 25 October 2022

CaseChat Overview and Summary

Bonza Aviation Pty Ltd sought to register the trade mark "BONZA" across several classes of goods and services. The application was opposed by Qantas Airways Limited, which argued that the proposed mark was deceptively similar to its own registered trade mark "QANTAS" and that the use of "BONZA" would be likely to deceive or cause confusion. The matter came before Katrina Brown, acting as delegate for the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade mark "BONZA" was deceptively similar to the registered trade mark "QANTAS" within the meaning of section 60 of the *Trade Marks Act 1995* (Cth). This required an assessment of the visual, aural, and conceptual similarities between the two marks, as well as consideration of the respective goods and services for which registration was sought and the likely perception of the relevant public.

In her reasoning, the delegate applied the established principles for assessing deceptive similarity, including the "imperfect recollection" test and the consideration of the "dominant features" of each mark. She found that while both marks were short and contained a vowel, they differed significantly in their initial letters, overall sound, and visual appearance. Furthermore, the delegate considered the distinctiveness of the respective marks and the nature of the goods and services. The delegate concluded that the marks were not deceptively similar and that the use of "BONZA" was unlikely to deceive or cause confusion among consumers.

Accordingly, the delegate dismissed the opposition and allowed the registration of the trade mark "BONZA" for Bonza Aviation Pty Ltd.

Orders