Lorenzo Mammone v No Flush Urinal Solutions Pty Ltd

This matter concerned an opposition by Lorenzo Mammone (the Opponent) to the trade mark application of No Flush Urinal Solutions Pty Ltd (the Applicant). The dispute arose from the Applicant's proposed registration of a trade mark, which the Opponent contended should be refused. The decision was made by Debrett Lyons, a Hearing Officer in the Trade Marks Hearings.

The legal issues before the Hearing Officer were whether the Applicant's trade mark should be rejected under section 44 of the *Trade Marks Act* (the Act) due to being substantially identical or deceptively similar to the Opponent's earlier trade marks, and whether the use of the Applicant's mark would be likely to deceive or cause confusion under section 43 of the Act due to its connotations. The Opponent also raised concerns about misleading or deceptive conduct under the *Trade Practices Act 1974* (Cth).

The Hearing Officer found that the Opponent had failed to establish opposition under section 44 because the priority dates of the Opponent's relied-upon trade mark applications postdated the priority date of the Applicant's application. Regarding section 43, the Hearing Officer noted that this section concerns connotations inherent to the mark itself, not confusion arising from the reputation of another mark, which is dealt with under section 60. The Opponent's arguments regarding the biodegradability connotation of the Applicant's mark were not established as a ground for refusal under section 43.

Consequently, the Hearing Officer decided that the grounds of opposition had not been established and directed that the trade mark application could proceed to registration one month from the date of the decision, subject to any appeal. The Applicant was awarded its costs on the official scale.