E&J Gallo Winery v Kristy Booth

E&J Gallo Winery (the applicant) sought to register a trade mark for the word "Gallo" in relation to wine and alcoholic beverages. Kristy Booth (the opponent) opposed the registration on the grounds that the proposed mark was substantially identical or deceptively similar to her registered trade mark "Gallo" (registration number 1480000) for wine and alcoholic beverages. The matter came before the Hearing Officer, Iain Campbell Thompson, of the Australian Trade Marks Office.

The primary legal issue before the Hearing Officer was whether the applicant's proposed trade mark "Gallo" was substantially identical or deceptively similar to the opponent's registered trade mark "Gallo" for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the visual, aural, and conceptual similarities between the two marks, as well as a consideration of the respective goods and services for which the marks were registered and sought to be registered.

The Hearing Officer found that the two marks were identical in appearance, sound, and meaning. Given that the goods and services covered by both the opponent's registered mark and the applicant's proposed mark were also identical (namely, wine and alcoholic beverages), the Hearing Officer concluded that the applicant's proposed trade mark was indeed substantially identical to the opponent's registered trade mark. Consequently, the opposition was upheld.

The Hearing Officer ordered that the application for registration of the trade mark "Gallo" by E&J Gallo Winery be refused.