Geelong Grammar School Limited

Geelong Grammar School Limited sought to register the trade mark "TIMBERTOT" across a range of classes including educational services, clothing, and retail. The application was opposed by Timbertop Pty Ltd, which argued that the proposed mark was deceptively similar to its own registered trade mark "TIMBERTOP" and that registration would likely cause confusion among consumers. The matter came before Nicholas Barbey.

The primary legal issue before the court was whether the proposed trade mark "TIMBERTOT" was deceptively similar to the registered trade mark "TIMBERTOP" for the purposes of the *Trade Marks Act 1995* (Cth). This required an assessment of the visual, aural, and conceptual similarities between the two marks, as well as consideration of the goods and services for which registration was sought and the likely perception of the relevant public.

In determining deceptive similarity, the court applied the established principles of trade mark law, which involve comparing the marks as a whole and considering the degree of resemblance and the likelihood of confusion. The court noted that while the marks shared the common element "TIMBER," the addition of "TOT" to the applicant's mark created a distinct difference. Considering the overall impression conveyed by each mark and the nature of the goods and services, the court found that the differences were sufficient to avoid a likelihood of deception or confusion in the minds of the relevant consumers.

The court therefore found that the proposed trade mark "TIMBERTOT" was not deceptively similar to the registered trade mark "TIMBERTOP" and ordered that the opposition be dismissed.