Flexsteel Industries Inc v Flexsteel Australia Pty Limited

Flexsteel Industries Inc (the applicant) sought to register its trade mark "FLEXSTEEL" in Australia. Flexsteel Australia Pty Limited (the respondent) opposed this application, arguing that the proposed mark was substantially identical or deceptively similar to its own registered trade mark "FLEXSTEEL" for goods in class 20 (furniture). The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark was, within the meaning of section 44 of the *Trade Marks Act 1995* (Cth), substantially identical or deceptively similar to the respondent's registered trade mark. This required an assessment of the visual, aural, and conceptual similarities between the two marks, as well as consideration of the respective goods for which the marks were used.

The Court applied the established principles for assessing trade mark infringement and opposition, including the "imperfect recollection" test and the consideration of the "average consumer" of the goods. It was noted that the marks were identical in spelling and pronunciation. The Court found that the goods in question, namely furniture, were closely related. Consequently, the Court concluded that there was a real and tangible danger that consumers would be confused into believing that the applicant's goods originated from or were connected with the respondent, given the identical nature of the marks and the similarity of the goods.

The Court upheld the respondent's opposition and ordered that the applicant's trade mark application be refused.