Jannike Seiuli v Failepou Peni [2018] ATMO 102

The Administrative Appeals Tribunal (AAT) considered a dispute between Jannike Seiuli and Failepou Peni concerning the registration of a trade mark. The applicant, Jannike Seiuli, sought to register the trade mark "SEIULI" for services in classes 39 and 41, specifically relating to the provision of entertainment services and the organisation of cultural events. The respondent, Failepou Peni, opposed this registration.

The primary legal issue before the Tribunal was whether the proposed trade mark was capable of distinguishing the applicant's services from those of other persons, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved determining if the mark was inherently adapted to distinguish or if it had acquired distinctiveness through use. The Tribunal also had to consider the potential for deception or confusion under section 60 of the Act, given the respondent's prior use of the name "SEIULI" in relation to similar services.

In its reasoning, the Tribunal noted that the surname "SEIULI" is not inherently distinctive in the context of entertainment and cultural services, as it is a common surname within certain communities. The Tribunal found that the applicant had not provided sufficient evidence to demonstrate that the mark had acquired distinctiveness through use prior to the filing date of the application. Furthermore, the Tribunal was satisfied that the respondent had established a significant reputation and goodwill associated with the name "SEIULI" in relation to entertainment services, leading to a real chance of deception or confusion if the applicant's mark were registered. Consequently, the Tribunal concluded that the trade mark application should be refused.