Glenn David Forbes and Anthony C. Forbes v Afar Holdings Pty Limited

This matter concerns an opposition by Afar Holdings Pty Limited to the registration of a trade mark application lodged by Glenn David Forbes and Anthony C. Forbes. The applicants sought registration of a mark for all goods in class 25, which includes clothing. Afar Holdings opposed the registration on several grounds, including that the applicants were not the proprietors of the mark, that the mark was substantially identical or deceptively similar to Afar Holdings' registered mark "IN SPORT," and that the use of the applicants' mark would be likely to deceive or cause confusion.

The delegate of the Registrar of Trade Marks was required to determine whether the applicants were the rightful proprietors of the mark, whether the applicants' mark was substantially identical or deceptively similar to the opponent's mark "IN SPORT" under section 33 of the Act, and whether the use of the applicants' mark would be likely to deceive or cause confusion under section 28 of the Act. The delegate also considered the argument that the applicants were not entitled to registration because they were not the proprietors, as per section 40 of the Act.

In relation to proprietorship, the delegate found that the applicants had satisfied the requirements of section 40 at the time of lodging the application, and subsequent assignment documents indicated that the mark had been assigned to Glenn David Forbes. Regarding substantial identity or deceptive similarity under section 33, the delegate noted that the opponent's applications were lodged after the applicants' application, thus precluding the opponent from claiming priority. The delegate also found that while the applicants' mark incorporated the words "IN SPORT," the dominant and distinguishing word "CANNIBAL" made the marks easily distinguishable, though potentially deceptively similar. However, due to the later filing date of the opponent's applications, this ground of opposition failed. Concerning section 28, the delegate found that while there was a possibility of deception or confusion due to the inclusion of "IN SPORT" in the applicants' mark, the opponent had not provided sufficient evidence to establish actual deception or confusion, nor had they substantiated claims under other paragraphs of section 28.

Consequently, the delegate found that the opponent had failed to establish any of the grounds of opposition. The opposition was dismissed, and the trade mark application was to proceed to registration, subject to any appeal. No order was made as to costs.