Henkel KgaA v Sanostra Enterprises Pty Ltd

This decision concerns an opposition by Henkel KgaA to the registration of trade marks incorporating the words KidSmart and KidStart, filed by Sanostra Enterprises Pty Ltd. The opposition was based on allegations of deceptive similarity with Henkel's existing trade mark KidsArt, and a claim under section 44 of the relevant Act. The hearing officer for the Trade Marks Hearings was tasked with determining whether the proposed KidSmart and KidStart marks would confuse or deceive consumers in relation to the nominated goods, thereby preventing their registration.

The central legal issue was whether the trade marks KidSmart and KidStart were deceptively similar to the opponent's KidsArt trade mark, as contemplated by section 10 of the Act. This required the hearing officer to assess the likelihood of confusion or deception arising from the comparison of the marks, particularly focusing on the suffixes "Smart" and "Start" in relation to "Art," given that the prefix "Kid" denoted the market. The hearing officer also considered whether the opponent had established its opposition ground under section 44 of the Act.

The hearing officer reasoned that it was highly unlikely that the KidSmart and KidStart trade marks would cause confusion or deception when compared to the KidsArt trade mark. This conclusion was reached by taking into account the differences between the trade marks and the inherent qualities of the opponent's KidsArt mark. Consequently, the hearing officer found that the marks were not deceptively similar and that the opponent had not established its ground under section 44. The trade mark applications were therefore permitted to proceed to registration one month from the date of the decision, unless an appeal was filed.