Foxtel Management Pty Ltd v Beijing Qiyi Century Science & Technology Co Ltd

This decision concerns an opposition by Foxtel Management Pty Ltd (the Opponent) to the registration of a trade mark by Beijing Qiyi Century Science & Technology Co Ltd (the Applicant). The dispute arose from the Applicant's attempt to register a trade mark, which the Opponent argued was likely to deceive or cause confusion due to its existing reputation in Australia. The matter was heard by Nicholas Smith, a Delegate of the Registrar of Trade Marks.

The primary legal issue before the Delegate was whether the Applicant's proposed trade mark was likely to deceive or cause confusion, thereby infringing section 60 of the *Trade Marks Act 1995* (Cth). This required the Delegate to consider the reputation of the Opponent's existing trade mark in Australia and the likelihood of consumers associating the Applicant's mark with the Opponent's goods and services.

The Delegate reasoned that the Opponent had established a significant reputation in Australia for its "IQ Mark," predominantly used with a lower case 'i' and upper case 'Q'. This mark had been used in various formats and with different suffixes. The Delegate found that consumers familiar with the Opponent's "IQ Mark" were likely to view the Applicant's trade mark, used for essentially identical goods and services, as originating from or being associated with the Opponent. This likelihood of confusion was considered to exist notwithstanding potential differences in pronunciation, particularly as pronunciation might not be relevant in online or app-based contexts. Consequently, the Delegate concluded that the ground of opposition under section 60 of the Act had been established.

As a result of finding the opposition successful, the Delegate refused to register the Applicant's trade mark. The refusal was to be recorded one month from the decision date, unless a notice of appeal was filed, in which case the refusal would be stayed pending the appeal's outcome. The Opponent was awarded costs against the Applicant.