Edwards Dunlop & Company Limited v Kimberley Clark Corporation

Edwards Dunlop & Company Limited (the applicant) sought to register a trade mark consisting of the word "KLEENEX" for use in relation to paper products. Kimberley Clark Corporation (the opponent) opposed this application, arguing that the proposed mark was deceptively similar to its own registered trade mark "KLEENEX" for identical goods. The matter came before the Registrar of Trade Marks, whose decision was then appealed to the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the applicant's proposed trade mark "KLEENEX" was deceptively similar to the opponent's registered trade mark "KLEENEX" for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of whether an ordinary consumer, when encountering the applicant's mark in the marketplace, would be likely to be deceived or confused into believing that the goods offered by the applicant were the goods of, or associated with, the opponent.

The Court applied the established principles for assessing deceptive similarity, which require a consideration of the marks as a whole, taking into account visual, aural, and conceptual similarities. It was noted that the marks were identical in spelling and pronunciation. The Court found that the goods in question were identical. Given the identical nature of the marks and the identical nature of the goods, the Court concluded that there was a high degree of likelihood of deception or confusion.

The appeal was dismissed, and the applicant's trade mark application was refused.