Kantfield Pty Ltd T/a Martogg & Company v Lonza Ltd

This decision concerns an opposition by Lonza Ltd. to the registration of the trade mark application FORTEX, filed by Kantfield Pty Ltd t/a Martogg & Company. Kantfield-Martogg sought to register FORTEX for modified polypropylene resin and moulding compounds used in the plastics industry. Lonza opposed the registration on grounds including proprietorship, conflict with its registered trade mark FOREX, and that the mark was unqualified for registration. The matter was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine three primary legal issues. Firstly, whether Kantfield-Martogg was the proprietor of the trade mark FORTEX, considering Lonza's prior use of the mark FOREX. Secondly, whether the application for FORTEX failed due to substantial identity or deceptive similarity with Lonza's registered trade mark FOREX, and whether the goods were of the same description. Thirdly, whether the application mark FORTEX was disqualified from registration under section 28 of the Trade Marks Act, specifically concerning the likelihood of deception or confusion arising from Lonza's existing trade mark.

On the proprietorship issue, the delegate found that FORTEX and FOREX were not the same word, nor were they substantially identical, applying the principles from cases such as *Karu Pty. Ltd. v Robert Leon Jose*. Therefore, the proprietorship claim under section 40 failed. Regarding the section 33 ground, while the delegate found the marks FORTEX and FOREX to be deceptively similar, this ground was dismissed because the goods in question – modified polypropylene resin and moulding compounds versus synthetic foam and insulating materials – were determined not to be goods of the same description, applying a pragmatic business sense approach as per *Re J. Lyons and Coy Lt's Application*. Finally, concerning the section 28 ground, the delegate followed established Trade Marks Office practice, informed by *Murray Goulburn Co-Operative Co. limited v The New South Wales Dairy Corporation*, which requires a finding of blameworthy conduct for an opposition under section 28(a) to succeed. As Lonza made no such allegation, this ground also failed.

Consequently, the opposition lodged by Lonza Ltd. was dismissed in its entirety. The delegate directed that the application for the trade mark FORTEX may proceed to registration, and awarded costs to the applicant, Kantfield-Martogg.