FetchTV Pty Ltd v LemonStone Group Pty Ltd

FetchTV Pty Ltd (the Applicant) sought to register the trade marks FETCH, FETCHTV, GOFETCH, and GOFETCHTV. LemonStone Group Pty Ltd (the Opponent) opposed these applications. The dispute concerned whether the Opponent's existing trade mark registrations for FETCH and FETCHTV, and its use of these marks, prevented the registration of the Applicant's proposed marks under section 44 of the *Trade Marks Act 1995* (Cth). The matter was heard by Hearing Officer Iain Campbell Thompson.

The primary legal issue before the court was whether the Opponent's registered trade marks FETCH and FETCHTV, and their use in relation to subscription television services, constituted grounds for opposing the registration of the Applicant's proposed marks FETCH, FETCHTV, GOFETCH, and GOFETCHTV. This involved an assessment of the similarity of the marks and the relatedness of the goods and services for which registration was sought, in light of the Opponent's existing rights and use.

The Hearing Officer determined that the Opponent had established its opposition under section 44 of the Act. The Opponent's registrations for FETCH and FETCHTV covered a range of goods and services, including apparatus for recording, transmission or reproduction of sound or images, telecommunication services, and entertainment services, all of which were found to be closely related to the services the Applicant sought to register. The Hearing Officer concluded that the Applicant's proposed marks were identical or deceptively similar to the Opponent's registered marks, and that the goods and services were also identical or closely related, leading to a likelihood of confusion.

Consequently, the Hearing Officer refused to register the Applicant's applications for FETCHTV and GOFETCH. The Opponent, having successfully established its opposition, was awarded its costs against the Applicant.