Multi Access Limited v Guanzhou Pharmaceutical Holdings Limited

Multi Access Limited (the applicant) sought to register a trade mark, and Guangzhou Pharmaceutical Holdings Limited (the opponent) opposed this application. The dispute concerned the potential for the applicant's trade mark to be confused with the opponent's existing trade mark registrations. The matter was before the Registrar of Trade Marks.

The primary legal issue was whether the applicant's trade mark should be rejected under section 44(1) of the relevant Act. This required the Registrar to determine if the applicant's trade mark was substantially identical with, or deceptively similar to, a trade mark registered by the opponent in respect of similar or closely related goods or services, and if the opponent's priority date was earlier than that of the applicant's application. The opponent bore the onus of establishing these grounds on the balance of probabilities.

The Registrar considered the evidence, including declarations from directors of the respective companies and a trade mark attorney. It was noted that the parties both dealt with products incorporating tea. Crucially, the evidence indicated that the opponent held registered trade marks in Australia, and the applicant's trade mark had not been used in Australia. The relevant date for assessing the ground under section 44 was the filing date of the opposed application, which was also the priority date, 9 November 2015. To succeed under section 44(1), the opponent needed to demonstrate that it had a priority date earlier than the applicant's application, and that its registered or pending trade mark was in respect of similar goods or closely related services to those of the applicant.