Mercedes-Benz Group AG v Vivo Mobile Communication Co., Ltd

Mercedes-Benz Group AG (the Opponent) opposed the registration of the trade mark VIVO by Vivo Mobile Communication Co., Ltd (the Applicant). The opposition concerned trade mark application number 1881943, which sought registration across various classes, including Class 12 for vehicles. The Opponent relied on several grounds of opposition under the *Trade Marks Act 1995* (Cth), including sections 44, 58A, and 60. The hearing officer, Debrett Lyons, acting as delegate of the Registrar of Trade Marks, considered these grounds.

The primary legal issues before the delegate were whether the Opponent had established grounds for opposition under sections 44, 58A, and 60 of the *Trade Marks Act 1995*. Specifically, the delegate had to determine if the Applicant's trade mark VIVO was deceptively similar to any of the Opponent's registered trade marks, if the Applicant was not the owner of the trade mark, or if the use of the trade mark would be likely to deceive or cause confusion under section 60.

The delegate found that the Opponent had not established any of the grounds of opposition. In particular, regarding section 60, the delegate considered the "notional use" of the VIVO mark in relation to motorised vans, electric or otherwise, and concluded that the relevant public would not be so insensitive as to confuse such goods with those marketed by the Opponent under the VITO name. Consequently, the delegate determined that the opposition failed on all grounds.

As no grounds of opposition were established, the delegate directed that trade mark application 1881943 proceed to registration 30 days after the decision, unless a notice of appeal was served, in which case registration would be stayed until the appeal was withdrawn or discontinued. Costs were awarded against the Opponent in accordance with the usual principle that costs follow the event.