Lockheed Martin Corporation v Raytheon Company

Lockheed Martin Corporation (the Applicant) sought to register the trade mark PAVEWAY in Australia for kits that convert unguided bombs into precision guided munitions. Raytheon Company (the Opponent) opposed this registration, arguing that the term 'paveway' is a generic descriptor for such goods, not a trade mark, and that even if it were a trade mark, the Applicant was not its owner. The Goods in question, known collectively as 'paveway kits', consist of a computer control group and an airfoil group that attach to a bomb to provide guidance and flight control, enabling it to be directed to a laser-designated target.

The primary legal issue before the Hearing Officer was whether the term 'paveway' had become a generic descriptor for the goods in Australia, thereby disentitling the Applicant from claiming exclusive trade mark rights. The Opponent also raised the issue of ownership of the trade mark, should it be found to be distinctive. The Hearing Officer was required to determine these issues based on the evidence presented, considering the onus on the Opponent to establish its grounds of opposition on the balance of probabilities.

The Hearing Officer reasoned that the evidence demonstrated that 'paveway' is universally known, particularly within the military context, as a descriptive term for the type of guidance kits in question, rather than a badge of origin. The acronym P.A.V.E. (Precision Avionics Vectoring Equipment) further supported this conclusion, indicating a functional description. Consequently, the Hearing Officer found that the Opponent had established its ground of opposition that the term was generic.

Accordingly, the Hearing Officer refused to register the trade mark PAVEWAY for the specified goods. The Applicant was ordered to pay the Opponent's costs on the Official Scale.