Grater Seven Pty Limited v Sizzlers Restaurants International, Inc

Grater Seven Pty Limited (the applicant) sought to register a trade mark for "Sizzlers" in relation to restaurant services. Sizzlers Restaurants International, Inc (the opponent) opposed this application, arguing that the proposed mark was deceptively similar to its own registered trade mark "Sizzler" (without the 's') for similar restaurant services. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "Sizzlers" was deceptively similar to the opponent's registered trade mark "Sizzler" for the purposes 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 nature of the goods and services for which they were to be used.

Justice Homann applied the established principles for assessing deceptive similarity, which require a consideration of the marks as a whole, rather than dissecting them into their component parts. He noted that the addition of the letter 's' to the opponent's mark was a minor difference that was unlikely to prevent consumers from believing that the services offered under the applicant's mark originated from, or were connected with, the opponent. The Court found that the marks were indeed deceptively similar, considering the high degree of visual and aural resemblance, and the identical nature of the services.

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