FIrmtech Aluminum Pty Ltd v Firmtech Aluminium Doors and Windows Pty Ltd

Firmtech Aluminum Pty Ltd opposed the registration of the trade mark application number 2177163, FIRMTECH ALUMINIUM & Device (stylised), in class 6, by Firmtech Aluminium Doors and Windows Pty Ltd. The opposition was heard by Tracey Berger in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's trade mark was, at the time of filing the application, deceptively similar to the opponent's registered trade mark, FIRMTECH ALUMINIUM, within the meaning 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 the goods and services for which they were registered and sought to be registered.

The Court applied the established principles for assessing deceptive similarity, considering the marks as a whole and the circumstances of their use. It was held that the inclusion of the word "DOORS AND WINDOWS" in the applicant's mark, while descriptive, did not sufficiently distinguish it from the opponent's mark, FIRMTECH ALUMINIUM. The Court found that the common element "FIRMTECH ALUMINIUM" was dominant and that there was a real chance that consumers would be confused into believing that the goods or services offered under the applicant's mark originated from, or were connected with, the opponent.

Consequently, the Court upheld the opposition and ordered that the trade mark application be refused.