Command Staffing LLC

This matter concerned a proposed revocation of the acceptance of trade mark application number 978728, COMMAND STAFFING, filed by Command Staffing LLC. The application sought registration for services in class 35 and claimed convention priority. Following an expedited examination, the application was accepted after an earlier cited trade mark lapsed. However, a Principal Examiner subsequently proposed revoking this acceptance under subsection 38(1)(a) of the *Trade Marks Act 1995* (Cth), alleging an error or omission in the examination process. The alleged error was that the acceptance officer failed to give full consideration to registered trade mark number 832807, COMMAND RECRUITMENT, for similar services, arguing that the marks were deceptively similar due to the shared distinctive element "COMMAND".

The legal issue before the delegate of the Registrar of Trade Marks was whether an error or omission had occurred in the course of the examination of the application, as contemplated by subsection 38(1)(a) of the Act. The applicant argued that an error or omission requires the acceptance officer to be mistaken as to the facts or in ignorance of them, or to have overlooked a conflicting application or registration. The applicant contended that the examiner had all the necessary facts and information before her, including details of trade mark 832807, and had exercised her judgment in determining that the marks were sufficiently different, as evidenced by annotations on the file.

The delegate reasoned that an error or omission under subsection 38(1)(a) requires a deviation from accuracy or correctness, a mistake, or a belief in something untrue. Citing established case law, the delegate noted that a mistake exists when a person erroneously thinks one state of facts exists when another actually does. The delegate found that the acceptance officer had all relevant materials before her, including trade mark 832807, and had considered it, marking the extract "mrksdiff" to indicate the marks were different. This demonstrated that the officer had not overlooked the registration but had exercised her judgment. The delegate concluded that a difference of opinion or a change of mind on the part of a trade mark officer does not constitute an error or omission for the purposes of revocation under this subsection.

As the delegate found no error or omission in the examination process under subsection 38(1)(a), and the registration fee had been paid, the delegate directed that the application could proceed to registration one month from the date of the decision, provided there was no opposition. The delegate noted that if the revocation had been based on subsection 38(1)(b), concerning special circumstances, a different outcome might have been reached.