Donald Richard Algie v Jerry a. Dorminy

This matter concerns opposition proceedings brought by Jerry A. Dorminy against five trade mark applications filed by Donald Richard Algie. The applications relate to the marks HOG'S BREATH and HOG'S HEAD, covering goods such as meat and clothing, and services including restaurant operations, accommodation, and event facilities. The hearing was conducted by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the opposition should succeed on grounds of prior use under section 40(1) of the Trade Marks Act, potential deception or confusion under section 28(a), and whether Mr Algie was disentitled to registration due to a prior business relationship with Mr Dorminy. The delegate also considered whether the HOG'S HEAD mark should be treated as equivalent to the HOG'S BREATH mark for the purposes of assessing use.

The delegate dismissed the opposition concerning the HOG'S HEAD mark, finding it distinct from the HOG'S BREATH mark. Regarding the section 40(1) claim for prior use of HOG'S BREATH in relation to clothing, the delegate found the evidence of a single mail-order purchase insufficient to establish use in Australia, referencing the principles in *The Seven Up Company v O. T. Limited*. The section 28(a) claim for deception or confusion also failed, as the delegate found Mr Dorminy had not established sufficient goodwill or reputation in Australia for the mark, noting that minimal Australian exposure, such as a mention in a sailing report, did not equate to acquired goodwill. Finally, concerning the entitlement to registration based on the prior relationship, the delegate found Mr Algie's evidence more convincing, concluding that Mr Dorminy had broken contractual arrangements and failed to communicate his objections clearly, thus Mr Algie was not disentitled to registration.

Consequently, the delegate dismissed the opposition in its entirety and awarded costs to the applicant, Mr Algie.