Intermatch Sweden Aktiebolag v Dick Smith Investments Pty Ltd

Intermatch Sweden Aktiebolag (the opponent) opposed the registration of a trade mark application by Dick Smith Investments Pty Ltd (the applicant) for the mark "DICKHEADS AND DEVICE" in class 34 for matches. The opponent, which owns several registered trade marks for "REDHEADS" and a device featuring a woman's head, alleged that the applicant's mark was deceptively similar to its own and that its use would be likely to deceive or cause confusion. The matter was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the applicant's trade mark was substantially identical or deceptively similar to the opponent's registered trade marks, and whether its use would be contrary to law, likely to deceive or cause confusion, or likely to deceive or cause confusion due to the reputation of the opponent's trade mark. The delegate considered grounds of opposition under sections 42, 43, 44, and 60 of the *Trade Marks Act 1995* (Cth).

The delegate found that the applicant's use of the "DICKHEADS" trade mark would not be contrary to the *Trade Practices Act 1974* (Cth) or any other law, as there was no evidence of misleading or deceptive conduct. The delegate also determined that the applicant's mark did not have a connotation that would likely deceive or cause confusion under section 43. Crucially, the delegate concluded that the "DICKHEADS" mark was neither substantially identical nor deceptively similar to the "REDHEADS" marks under section 44, noting significant visual, aural, and semantic differences between the words and distinct differences in the accompanying devices. Consequently, the ground under section 60, which relies on substantial identity or deceptive similarity to a trade mark with a reputation, also failed.

The opposition was dismissed, and the delegate awarded costs against the opponent. The application for registration of the "DICKHEADS AND DEVICE" trade mark was allowed.