Effem Foods Pty Ltd v Torrag Pty Ltd

This decision concerns an opposition by Effem Foods Pty Ltd ("Effem") to the registration of a trade mark application filed by Torrag Pty Ltd ("Torrag"). Torrag sought to register the trade mark "PETVETS" with a cat and dog device for services including veterinary hospital and pet boarding. Effem, a manufacturer of pet foods sold under marks such as PAL, WHISKAS, and the "Waltham hand device," opposed the registration on three grounds, including deceptive similarity under sections 44 and 60 of the *Trade Marks Act 1995* (Cth) and a breach of section 52 of the *Trade Practices Act 1974* (Cth) due to alleged misleading or deceptive conduct. The matter was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether Torrag's proposed trade mark was deceptively similar to Effem's registered trade marks and its use of the "Waltham hand device" and associated branding. This involved assessing whether the marks were likely to deceive or cause confusion among consumers, considering the visual elements, the word "PETVETS," and the overall impression left on the ordinary person. The delegate also had to consider whether the alleged deceptive similarity would lead to misleading or deceptive conduct under the *Trade Practices Act 1974*.

In reaching its decision, the delegate applied the definition of deceptive similarity from section 10 of the *Trade Marks Act 1995*, which requires a likelihood of deception or confusion. The delegate considered the principles outlined in *Registrar of Trade Marks v Woolworths* regarding the assessment of deceptive similarity, including the need for a real tangible danger of deception, the perspective of the ordinary person, and the consideration of all surrounding circumstances. The delegate found that while there were some shared elements between the marks, particularly the depiction of animals, the presence of the word "PETVETS" in Torrag's mark, and the direction of the animals' gaze towards this word, created a distinct impression compared to Effem's marks where the gaze was directed towards the "Waltham hand device." The delegate concluded that the distinguishing verbal element in Torrag's mark significantly reduced the risk of confusion, and therefore, the necessary level of deceptive similarity was not present.

Consequently, the delegate found that none of the grounds of opposition had been established. The application by Torrag was permitted to proceed to registration, subject to a four-week period for any appeal. Effem was ordered to pay Torrag's costs.