Earthtech Consultants (Qld) Pty Ltd v Earthtech Inc

This matter concerned an appeal to the Full Federal Court of Australia concerning the registration of a trade mark. The appellant, Earthtech Consultants (Qld) Pty Ltd, sought to register the trade mark "EARTHTECH" for services including engineering, architectural, and scientific consulting. The respondent, Earthtech Inc, opposed this registration, arguing that the proposed mark was deceptively similar to its own registered trade mark "EARTHTECH" for similar services.

The primary legal issue before the Full Federal Court was whether the proposed trade mark "EARTHTECH" was deceptively similar to the respondent's registered trade mark "EARTHTECH" for the purposes of section 60 of the *Trade Marks Act 1995* (Cth). This involved an assessment of whether an ordinary consumer, when encountering the proposed mark in the marketplace, would be likely to be deceived or confused into believing that the services offered under it originated from, or were in some way connected with, the owner of the registered mark.

The Court applied the established principles for assessing deceptive similarity, which require a consideration of the marks as a whole, the aural, visual, and conceptual similarities, and the imperfect recollection of an average consumer. In this instance, the marks were identical. The Court found that the services offered by both parties were also closely related, falling within the broad categories of engineering, scientific, and technical consulting. Consequently, the Court concluded that there was a significant likelihood of deception or confusion among consumers, and therefore, the proposed trade mark was deceptively similar to the registered trade mark.

The Full Federal Court dismissed the appeal, upholding the delegate's decision to refuse the registration of the trade mark.