CMA Corporation Ltd v CMA CGM

This matter concerned oppositions by CMA Corporation Ltd to the registration of two trade marks by CMA CGM. The hearing was conducted by a delegate of the Registrar of Trade Marks. CMA Corporation was represented by counsel, while CMA CGM did not attend the hearing or provide written submissions, relying instead on its filed evidence.

The primary legal issue before the delegate was whether the registration of CMA CGM's trade marks should be opposed on the grounds that they were deceptively similar to trade marks that had acquired a reputation in Australia, pursuant to section 60 of the *Trade Marks Act 1995* (Cth). CMA Corporation also raised other grounds of opposition in its notice, but ultimately only pursued the section 60 ground for trade mark number 1203713.

The delegate found that CMA CGM had not established the necessary reputation in Australia for its trade marks as at the relevant date, which was prior to the incorporation of CMA CGM Australia Pty Ltd in February 2006. The evidence indicated that at that time, the face of CMA CGM in Australia was primarily Australian National Lines Limited (ANL), with references to the CMA CGM group being sparse and in small print, and focused on international maritime transport. The delegate concluded that these circumstances, combined with the familiarity of Australian consumers with acronyms and their acceptance of minor differences, militated against the likelihood of deception or confusion as to the origin of the respective trade marks. Consequently, the delegate found that the ground of opposition under section 60 had not been made out for either trade mark.

For trade mark number 1085059, the delegate found that CMA CGM had not met the onus of proof on the balance of probabilities for any of the grounds of opposition. Therefore, trade mark number 1085059 was permitted to proceed to registration one month from the date of the decision, subject to any appeal. Costs were awarded against CMA CGM as the unsuccessful opponent.