Diageo Australia Limited v Spirits International NV

Diageo Australia Limited, the applicant, sought to register the trade mark "RUSKI" for alcoholic beverages. Spirits International NV, the opponent, opposed this application, relying on its prior use and registration of the trade mark "LEMON RUSKI" and other "RUSKI" variations for similar goods. The hearing was conducted before a delegate of the Registrar of Trade Marks.

The central legal issues before the delegate were whether the applicant's proposed trade mark "RUSKI" was deceptively similar to the opponent's registered and used trade marks "LEMON RUSKI" and other "RUSKI" variants, pursuant to sections 44 and 60 of the relevant Act. This assessment was crucial for determining if the opponent's opposition grounds were established.

The delegate reasoned that the opponent had established significant use and reputation in Australia for its "LEMON RUSKI" trade mark in relation to lemon-flavoured vodka cocktail mixers since 1997. The opponent also held registrations for "RUSKI" and "LEMON RUSKI" for alcoholic beverages, including pre-mixed alcoholic beverages. Applying the definition of deceptive similarity under section 10 of the Act, the delegate considered whether the trade marks were so nearly alike as to be likely to deceive or cause confusion, given the opponent's existing rights and the nature of the goods.

The delegate found that the trade marks "RUSKI" and "LEMON RUSKI" were deceptively similar to the opposed trade mark. Consequently, the opposition was upheld, and the application for registration of the trade mark "RUSKI" by Diageo Australia Limited was refused.