Harvey Comics, Inc

Harvey Comics, Inc. (the applicant) sought to register a trade mark for the word "Harvey" in relation to comic books and related publications. The respondent, a company operating under the name "Harvey Comics", opposed the application on the basis that the mark was deceptively similar to its own registered trade mark, also for "Harvey Comics", and that the applicant's use of the mark would be likely to deceive or cause confusion. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "Harvey" was deceptively similar to the respondent's registered trade mark "Harvey Comics" for the purposes of the *Trade Marks Act 1995* (Cth). This involved an assessment of the degree of visual, phonetic, and conceptual resemblance between the two marks, as well as consideration of the goods for which registration was sought and the likely perception of the relevant public.

The Court 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. It was noted that the respondent's mark was a composite mark, whereas the applicant's mark was a single word. However, the Court found that the common element "Harvey" was distinctive and that the addition of "Comics" to the respondent's mark did not sufficiently differentiate it from the applicant's proposed mark, particularly given the nature of the goods. The Court concluded that there was a real likelihood of deception or confusion among consumers, leading to the belief that the applicant's goods originated from or were associated with the respondent.

The Court therefore dismissed the applicant's appeal and upheld the opposition to the registration of the trade mark.