Cork and Chroma Pty Ltd v Cocktails & Canvas Asset Corp Pty Ltd

This matter concerned an opposition by Cork and Chroma Pty Ltd (the opponent) to the registration of a trade mark by Cocktails & Canvas Asset Corp Pty Ltd (the applicant). The dispute centred on the opponent's claim that its unregistered trade marks, "CORK & CHROMA" and "CORK AND CHROMA," had acquired a reputation in Australia prior to the applicant's priority date, and that the applicant's proposed use of its trade mark would be likely to deceive or cause confusion. Both parties were operating in the "paint and sip" services industry, which involves customers painting under artistic guidance while consuming alcoholic beverages.

The court was required to determine whether the opponent had established that its trade marks had acquired a reputation in Australia among the relevant market or a significant number of persons before 2 December 2016. Furthermore, the court had to assess whether, due to this reputation, the use of the applicant's trade mark would be likely to cause the public to be deceived or confused. The legal principles applied included the assessment of likelihood of confusion, which requires considering all surrounding circumstances, the context of use, the market for the goods or services, and the character of the probable acquirers. The rights of the parties were to be determined as at the date of the application, and the assessment extended to all goods and services within the application's specification, considering what the applicant could properly do if registration were obtained.

The Hearing Officer found that the opponent had met the onus of proof in establishing the ground of opposition under section 60 of the relevant Act. Consequently, the Hearing Officer refused to register the applicant's trade mark application no. 1813219. The Hearing Officer also awarded costs against the applicant, following the usual principle that costs follow the event.