Hypertec Pty. Limited v Kabushiki Kaisha Tec (Also Trading as TEC Corporation)

Hypertec Pty. Limited (the applicant) sought to register a trade mark consisting of the word "HYPERTEC" in class 9 for goods including computers and computer peripherals. The respondent, Kabushiki Kaisha Tec (also trading as TEC Corporation), opposed this registration on the grounds of likely confusion with its own registered trade mark "TEC" and its unregistered trade mark "TEC" for similar goods. The delegate of the Registrar of Trade Marks had refused the application, and Hypertec appealed this decision to the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's proposed trade mark "HYPERTEC" was deceptively similar to the respondent's trade marks "TEC" and "TEC" (unregistered), such that it was likely to cause confusion among consumers as to the origin of the goods. This involved an assessment of the visual, aural, and conceptual similarities between the marks, as well as the nature of the goods in question and the likely perception of the relevant class of purchasers.

Justice Vija Zars applied the established principles for assessing deceptive similarity under the *Trade Marks Act 1995* (Cth). The Court considered the marks as a whole, noting that while "HYPERTEC" contained the word "TEC", the prefix "HYPER" was a significant distinguishing element. The Court found that the addition of "HYPER" altered the overall impression of the mark sufficiently to avoid a likelihood of deception or confusion, particularly given the distinctiveness of the prefix in the context of technology goods. The Court also considered the respondent's unregistered mark, finding that its use was not sufficiently established or distinctive to warrant protection against the registration of "HYPERTEC".

The appeal was allowed, and the delegate's decision was set aside. The Court ordered that the applicant's trade mark application proceed to registration.