Malcolm and Vicki Christie v Deeway Laboratories Pty Ltd as Trustee

This matter concerned an opposition by Malcolm and Vicki Christie (the Opponents) to the registration of the trade mark ‘PETWAY’ by Deeway Laboratories Pty Ltd as Trustee (the Applicant). The dispute arose from the concurrent use of the PETWAY trade mark by both parties for different products. The Applicant, Deeway, had been using the PETWAY trade mark since 1988 for animal grooming and insecticidal formulations, while the Opponents developed and used the PETWAY trade mark from early 1996 for pet doors.

The court was required to determine whether the Opponents had established grounds to oppose the Applicant's trade mark application. Specifically, the court considered whether the Applicant's use of the PETWAY trade mark would amount to misleading or deceptive conduct under the Trade Practices Act (TPA), and whether the opposition ground under section 42(b) of the relevant Act had been made out.

The Hearing Officer found that the Opponents had not discharged the onus of establishing that the Applicant's use of PETWAY would constitute misleading or deceptive conduct. The evidence presented did not demonstrate that the Applicant's use of the trade mark was likely to deceive or confuse consumers. Consequently, the ground of opposition under section 42(b) was not established.

As the Opponents had not established any grounds for opposition, their opposition failed. The Hearing Officer directed that the Applicant's trade mark application could proceed to registration one month from the date of the decision, subject to any appeal. The Opponents were ordered to pay the Applicant's costs.