Lam Soon Oil and Soap Mfg (S) Pty Ltd, Re

This matter concerns trade mark application 521327, filed by Lam Soon Oil and Soap Mfg (S) Pty Ltd, for goods in class 29, specifically edible oils and fats, shortening, and margarine. The application was opposed by Pura Vegetable Oils (Aust) Pty Ltd, which held two prior registrations. The delegate of the Registrar of Trade Marks was tasked with determining whether the applicant's mark was registrable in light of these prior registrations.

The primary legal issue before the delegate was whether the applicant's trade mark was substantially identical with or deceptively similar to existing registered trade marks, pursuant to section 33(1) of the relevant Act. This required an assessment of deceptive similarity, defined under section 6(3) as a resemblance likely to deceive or cause confusion, considering the marks, the goods, the nature of the customers, and all surrounding circumstances. The delegate also considered whether the application could be saved by provisions relating to honest concurrent use or prior use under section 34 of the Act.

The delegate found that the applicant's mark was deceptively similar to registration 446164, held by Pura Vegetable Oils (Aust) Pty Ltd, which covered "edible oils and fats and salad dressings." Applying the principles from *Dial an Angel v Sagitaur Services* and *Pianotist Co Ltd*, the delegate concluded that the overall similarity between the marks, when applied to the overlapping goods, was such that widespread deception or confusion was inevitable. While the marks were not found to be substantially identical, the deceptive similarity was sufficient to block registration under section 33(1). The delegate also noted that there was no evidence of extensive and honest concurrent use or use prior to the cited proprietor's first use or application that would justify acceptance under section 34.

Consequently, the delegate refused trade mark application 521327 under section 33(1) of the Act, finding that it was not saved by the provisions of section 34.