David Parker v AVC Operations Pty Ltd

This matter concerned an opposition by David Parker (the Opponent) against two trade mark applications by AVC Operations Pty Ltd (the Applicant). The Opponent relied on grounds of opposition under sections 44 and 58A of the *Trade Marks Act 1995* (Cth), specifically referencing its registered trade mark number 1808292, FOUR LOKO, in class 33 for "Flavored alcoholic beverages except beers; distilled spirits". The hearing officer was required to determine whether the Applicant's proposed trade marks were registrable in light of the Opponent's prior rights.

The primary legal issue before the hearing officer was whether the Applicant's trade marks were substantially identical with, or deceptively similar to, the Opponent's registered mark, thereby infringing section 44 of the *Trade Marks Act 1995*. To succeed under section 44, the Opponent needed to establish that a trade mark registered or applied for by another person had an earlier priority date, was substantially identical or deceptively similar to the Applicant's trade marks, and was in respect of similar or closely related goods or services.

The hearing officer found that the Opponent's mark satisfied the first requirement of section 44, having an earlier priority date and being registered for goods that were the same or very similar to the Applicant's proposed goods. While the parties conceded the marks were not substantially identical, the hearing officer applied the principles for assessing deceptive similarity, which require consideration of imperfect recollection and the likelihood of confusion among ordinary consumers. The hearing officer concluded that there was a real risk of confusion between the Applicant's trade marks and the Opponent's mark, finding them to be deceptively similar. Consequently, the ground of opposition under section 44 was established.

The hearing officer ordered that the registration of the Applicant's two trade marks, numbers 2030048 and 2030052, be refused. Costs were awarded in favour of the Opponent, with costs for trade mark number 2030048 awarded in the applicable amounts, and reduced costs awarded for trade mark number 2030052.