Divine Club Pty Ltd v Les Grands Chais De France SAS

Divine Club Pty Ltd (Divine Club) sought to register a trade mark for "Divine Club" in relation to wine and spirits. Les Grands Chais de France SAS (Les Grands Chais), a French wine producer, opposed this registration. The dispute concerned whether Divine Club's proposed trade mark was deceptively similar to Les Grands Chais' registered trade mark for "Divine" in relation to wine.

The primary legal issue before the Court was whether the proposed trade mark "Divine Club" was deceptively similar to the registered trade mark "Divine" for the purposes of section 60 of the *Trade Marks Act 1995* (Cth). This involved an assessment of whether consumers would be likely to be deceived or confused into believing that the goods offered under the "Divine Club" mark originated from or were connected with the proprietor of the "Divine" mark.

The Court applied the principles of deceptive similarity, considering the visual, aural, and conceptual aspects of the marks. It noted that the word "Divine" was the dominant and distinctive element of both marks. While the addition of "Club" to Divine Club's mark might suggest a different commercial origin, the Court found that the common element "Divine" was sufficiently prominent and carried a strong conceptual meaning that could lead to confusion. The Court concluded that there was a real chance of deception or confusion among a significant number of the relevant consumers.

Consequently, the Court upheld the opposition and ordered that Divine Club's application for registration of the trade mark "Divine Club" be refused.