Koshito Confecciones C.A. v Oshkosh B'Gosh, Inc

Koshito Confecciones C.A. (Koshito) sought to register the trade mark 'KOSHITO' in Australia for use in relation to clothing. Oshkosh B'Gosh, Inc. (Oshkosh), the owner of the registered Australian trade mark 'OSHkOSH B'gosh' and the unregistered Australian trade mark 'OSHkOSH', opposed this application. The opposition was heard by the Registrar of Trade Marks, who dismissed the opposition. Koshito appealed this decision to the Federal Court of Australia.

The primary legal issue before the Court was whether Koshito's proposed trade mark 'KOSHITO' was deceptively similar to Oshkosh's registered and unregistered trade marks 'OSHkOSH B'gosh' and 'OSHkOSH' respectively, within the meaning of section 10 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the visual, aural, and conceptual similarities between the marks, and whether the ordinary consumer of the goods in question would be likely to be deceived or confused into believing that the goods offered by Koshito originated from or were connected with Oshkosh.

The Court applied the established principles for assessing deceptive similarity, including the "imperfect recollection" test and the consideration of the marks as a whole. It found that while there were some similarities, particularly the common suffix 'osh', the initial syllables and overall impression of the marks were sufficiently distinct. The Court noted that the target consumers were likely to exercise a degree of care when purchasing clothing, and that the differences in the marks, both visually and aurally, were significant enough to prevent deception or confusion.

Consequently, the Court allowed Koshito's appeal, setting aside the Registrar's decision and remitting the matter back to the Registrar with a direction to dismiss Oshkosh's opposition.