L'Oreal v Provendex Pty Ltd

L'Oreal opposed the registration of the trade mark application number 2077385, named ÉLIVE and filed by Provendex Pty Ltd, in classes 3 and 5. The opposition was heard by Nicholas Barbey.

The primary legal issue before the court was whether the applicant's trade mark ÉLIVE was deceptively similar to L'Oreal's registered trade marks, specifically ÉLAN VITAL and ÉLAN VITAL (in stylised form), for the purposes of section 60 of the *Trade Marks Act 1995* (Cth). L'Oreal also contended that the applicant's mark was substantially identical or deceptively similar to its registered trade marks under section 44 of the Act.

In determining the issue of deceptive similarity under section 60, the court considered the aural, visual, and conceptual similarities between the marks. It noted that both marks commenced with the prefix "É" and contained the letter "L" and the vowel sound "i". The court found that while there were some differences, the overall impression created by the marks was sufficiently similar to lead to a likelihood of deception or confusion among consumers. The court applied the principles of comparison of marks, considering the marks as a whole and the imperfect recollection of consumers.

The court upheld L'Oreal's opposition, finding that the applicant's trade mark ÉLIVE was deceptively similar to L'Oreal's registered trade marks. Consequently, the application for registration of ÉLIVE was refused.