Immunex Corporation v Maine Resources Pty Ltd

This decision concerns an opposition by Immunex Corporation ("Immunex") to the registration of the trade mark "Immuplex" by Marine Resources Pty Ltd ("Marine"). Marine applied to register "Immuplex" for nutritional additives for medical purposes in class 5. Immunex, relying on its registered trade mark "Immunex" (registration number 567826), opposed the application on several grounds, including those under sections 43, 44, and 60 of the *Trade Marks Act 1995* (Cth). The matter came before a delegate of the Registrar of Trade Marks for determination.

The delegate was required to determine whether the trade mark "Immuplex" should be registered, having regard to the grounds of opposition raised by Immunex. Specifically, the delegate had to consider whether the use of "Immuplex" was likely to deceive or cause confusion under section 43, whether it was substantially identical or deceptively similar to Immunex's registered trade mark under section 44, and whether it was substantially identical or deceptively similar to a trade mark that had acquired a reputation in Australia under section 60. The delegate also considered whether any other grounds of opposition were established, noting that evidence and submissions only related to sections 43, 44, and 60.

In relation to section 43, the delegate found that the trade mark "Immuplex" did not possess any inherent connotation likely to deceive or cause confusion, dismissing this ground. For section 44, the delegate found that while the goods were similar and the priority dates were appropriate, the trade marks "Immuplex" and "Immunex" were neither substantially identical nor deceptively similar. The delegate reasoned that the visual and aural differences in the third syllables ("-nex" versus "-plex") outweighed the similarities, and that in the context of the crowded pharmaceutical and nutritional supplement market, the ordinary customer would be able to distinguish between the two marks. Consequently, the opposition under section 44 failed. As the delegate had already found the marks not to be substantially identical or deceptively similar, the opposition under section 60, which also required such a finding, was also dismissed.

Having found that none of the grounds of opposition were established, the delegate directed that Marine's application for the trade mark "Immuplex" could proceed to registration after 30 days from the date of the decision, subject to payment of fees and any pending appeal. No award of costs was made, as Immunex's opposition was unsuccessful and Marine had taken no active part in the proceedings.