CUB Pty Ltd v Elixir Signature Pty Ltd

In the matter of CUB Pty Ltd v Elixir Signature Pty Ltd, the Supreme Court of New South Wales considered a dispute between CUB Pty Ltd (the applicant) and Elixir Signature Pty Ltd (the respondent). The applicant sought to restrain the respondent from using the mark "ELIXIR" in relation to alcoholic beverages, alleging it infringed their registered trade mark "ELIXIR" for similar goods.

The primary legal issue before the Court was whether the respondent's use of the mark "ELIXIR" for its alcoholic beverages constituted a contravention of section 120(1) of the *Trade Marks Act 1995* (Cth). This required the Court to determine if the respondent's mark was "substantially identical with, or deceptively similar to" the applicant's registered trade mark, and if the goods in respect of which the respondent used its mark were "closely related" to the goods for which the applicant's trade mark was registered.

The Court applied the principles established in *Shell Co of Australia Ltd v Rohm & Haas Co* and *Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd* to assess deceptive similarity. It considered the visual, aural, and conceptual similarities between the marks, as well as the overall commercial impression. The Court found that while the marks were not identical, they were deceptively similar due to the shared prominent element "ELIXIR" and the nature of the goods. The Court also determined that the goods were closely related, as both parties dealt in alcoholic beverages.

Consequently, the Court found that the respondent had infringed the applicant's trade mark and made orders restraining the respondent from using the mark "ELIXIR" in relation to alcoholic beverages.