Larry John Powell v Glow Zone Products Pty Ltd

Larry John Powell sued Glow Zone Products Pty Ltd in the Federal Court of Australia, alleging infringement of his trade mark "CAPS THE GAME". The trade mark was registered in relation to games and amusement goods in Class 28. Powell alleged that Glow Zone Products Pty Ltd had infringed the trade mark by marketing similar products under the name "GLO-CAPS". The court had to decide whether the two marks were substantially identical or deceptively similar, whether Powell's trade mark was distinctive of its goods, and whether the word "caps" was used generically in the relevant context or was likely to become used by the trade and persons purchasing the goods as generally descriptive of them. The court found that the two marks were deceptively similar, that Powell's trade mark was not distinctive of its goods, and that the word "caps" was used generically in the relevant context. The court held that the registration of Powell's trade mark was wrongly made and should be expunged from the Register. The court also found that Powell's action for infringement failed, and that Glow Zone Products Pty Ltd's counter-claim based on the invalidity of the trade mark succeeded.