Kimberly-Clark Corporation v Vereinigte Papierwerke Schikedanz and Co

Kimberly-Clark Corporation (the applicant) sought to register a trade mark consisting of the word "KLEENEX" in relation to paper products, including tissues. Vereinigte Papierwerke Schikedanz and Co (the opponent) opposed the registration, claiming that the mark was deceptively similar to its own registered trade mark "KLEEN" for similar goods. The matter came before Windeyer J in the High Court of Australia.

The central legal issue before the Court was whether the proposed trade mark "KLEENEX" was deceptively similar to the opponent's registered trade mark "KLEEN" for the purposes of the relevant trade marks legislation. This required an assessment of the likelihood of deception or confusion among consumers as to the origin of the goods.

Windeyer J applied the established principles for assessing deceptive similarity, which involve considering the marks as a whole, the imperfect recollection of consumers, and the dominant features of each mark. His Honour found that while both marks shared the common element "KLEEN," the addition of "EX" to the applicant's mark created a distinct difference in sound, appearance, and meaning. The Court concluded that the differences were sufficient to prevent deception or confusion in the minds of ordinary purchasers, particularly when considering the goods in question.

Consequently, the opposition to the registration of the "KLEENEX" trade mark was dismissed.