Imax Corporation v Maxvision Pty Limited

Imax Corporation (the applicant) sought to expunge the registration of the trade mark "MAXVISION" owned by Maxvision Pty Limited (the respondent) from the Register of Trade Marks. The application was made under section 28 of the *Trade Marks Act 1955* (Cth) (the Act), which deals with the registration of trade marks that are identical or deceptively similar to earlier trade marks. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether, in an opposition proceeding under section 28 of the Act, it was necessary to demonstrate blameworthy conduct on the part of the applicant for registration, in addition to establishing a likelihood of deception or confusion. This question arose in the context of the Registrar's previous practice, which had required such a demonstration.

The Court determined that the Registrar's previous practice was erroneous. It held that section 28 of the Act does not require proof of blameworthy conduct. The sole test for successful opposition under section 28 is whether the trade mark sought to be registered is identical with or deceptively similar to an earlier trade mark. The Court found that the respondent's trade mark was deceptively similar to the applicant's earlier trade mark.

Consequently, the Court ordered that the registration of the trade mark "MAXVISION" be expunged from the Register of Trade Marks.