Hatton Holdings (Vic) Pty Ltd as Trustee for the Hatton Holdings (Vic) Trust v Knead (Holding) SAL

Hatton Holdings (Vic) Pty Ltd as trustee for the Hatton Holdings (Vic) Trust ("the Opponent") opposed the registration of the trade mark application number 1982635, ZAATAR W ZEIT, in Class 43, by Knead (Holding) SAL ("the Applicant"). The opposition was brought under section 52 of the *Trade Marks Act 1995* (Cth), with grounds raised under sections 42(b), 44, 58, and 60 of the Act. The matter was heard by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the Opponent had established any of the grounds of opposition. Specifically, the delegate was required to determine if the Applicant's trade mark was substantially identical with or deceptively similar to a registered trade mark of the Opponent, or if other grounds such as misrepresentation or deceptive similarity to unregistered rights were made out. The onus was on the Opponent to prove its case on the balance of probabilities, with the relevant date for assessment being 10 January 2019, the filing and priority date of the Applicant's trade mark.

The delegate considered the ground of opposition under section 44, which requires the applicant's trade mark to be substantially identical with or deceptively similar to a registered trade mark with an earlier priority date for similar services. The Opponent relied on its registered trade mark number 1511172. The delegate found that the Applicant's trade mark, ZAATAR W ZEIT, was not substantially identical to the Opponent's registered mark, noting significant differences when compared side-by-side. Furthermore, the delegate concluded that the marks were not deceptively similar, applying the broader test of whether the marks were likely to deceive or cause confusion. This assessment considered the marks as a whole, the ordinary consumer, and the context of the services. The delegate found no real tangible danger of confusion, noting that while both marks contained the word "ZAATAR," the distinctive elements and overall impression of each mark differed. As the Opponent failed to establish this ground, and no other grounds were successfully made out, the opposition was dismissed.

The delegate ordered that the opposition be dismissed and that the trade mark application proceed to registration.