Cave De Pongracz Limited v Veuve Cliquot De Ponsardin

Cave De Pongracz Limited (the applicant) sought to register the trade mark "Cave De Pongracz" for use in relation to wine. Veuve Cliquot De Ponsardin (the opponent) opposed this registration, arguing that the proposed mark was deceptively similar to its own registered trade mark "Veuve Clicquot" 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 the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "Cave De Pongracz" was deceptively similar to the opponent's registered trade mark "Veuve Clicquot" 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 two marks, considering the goods for which registration was sought.

The Court applied the principles established in cases such as *Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd* and *Parke Davis & Company Ltd v. K. & G. Pharmaceutical Ltd*, which require a comparison of the marks as a whole, taking into account imperfect recollection. The Court found that while there were some differences, the marks shared significant similarities in sound and appearance, particularly the prominent "Pongracz" and "Clicquot" elements. Considering the goods in question (wine), the Court concluded that there was a real likelihood of deception or confusion among consumers, leading to the conclusion that the applicant's mark was deceptively similar to the opponent's registered mark.

Consequently, the Court upheld the opposition and ordered that the application for registration of the trade mark "Cave De Pongracz" be refused.