Himalaya Global Holdings Ltd

This decision concerns an application to register the trade mark "HIMALAYA" in class 3 for cosmetics, which was opposed by the owner of registered trade marks "HIMALAYAN" and "HIMALAYAS" in the same class. The hearing officer was required to determine whether the applicant's mark was deceptively similar to the opponent's registered marks, thereby infringing the opponent's rights.

The central legal issue was the application of section 44 of the *Trade Marks Act 1995* (Cth), which prohibits the registration of a trade mark if it is deceptively similar to an earlier trade mark. The hearing officer had to assess the degree of visual, aural, and conceptual resemblance between the marks, considering the overall impression they created in the minds of the relevant consumers.

The hearing officer found that the marks "HIMALAYA" and "HIMALAYAN" were deceptively similar. This conclusion was based on the substantial visual and aural overlap between the two words, as well as the shared conceptual association with the Himalayan mountain range. The common element "HIMALAY" was considered dominant, and the addition of "AN" to the opponent's mark was not sufficient to distinguish it from the applicant's mark in the minds of consumers. Consequently, the hearing officer rejected the application for registration.