Chi-Chi's Inc v George Lambropoulos

An opposition was lodged by Chi-Chi's Inc. (the opponent) against the trade mark application by George Lambropoulos (the applicant) for the mark "chi chi" in class 25, covering clothing, footwear, and headgear. The applicant filed the application on 5 May 1997. The opponent's opposition was based on seven grounds under the *Trade Marks Act 1995*, but the delegate determined that only grounds under sections 44 and 60 had been adequately addressed by the evidence.

The delegate was required to determine whether the applicant's trade mark was identical or deceptively similar to the opponent's registered trade marks, and if the goods or services were similar or closely related, for the purposes of section 44. Additionally, the delegate had to consider whether the applicant's trade mark was substantially identical or deceptively similar to a trade mark that had acquired a reputation in Australia before the applicant's priority date, and if its use would be likely to deceive or cause confusion, as per section 60.

Regarding section 44, the delegate found that while the applicant's mark "chi chi" was deceptively similar to the opponent's registered mark "chi chi's" (specifically registrations 400203, 400204, and 400205), the opponent's goods (food items) and services (restaurant and catering) were neither similar nor closely related to the applicant's goods (clothing, footwear, and headgear). Consequently, the opposition failed under section 44. For section 60, although the delegate accepted that the applicant's mark was deceptively similar to the opponent's mark, the evidence did not establish that the opponent's trade mark had acquired a sufficient reputation in Australia prior to the applicant's priority date of 5 May 1997. The delegate noted that while the opponent had significant international sales and advertising, and had established a website, the evidence of Australian exposure was minimal, with only approximately 300 website hits from Australia over a two-year period.

Therefore, the delegate found that the opposition was not successful on any of the grounds.