Natural Selection Clothing Company Ltd v Justin Doyle

Natural Selection Clothing Company Ltd (the applicant) sought to register the trade mark 623592, which comprised the word "NATURAL SELECTION" and a device. Justin Doyle (the opponent) opposed this application, relying on his earlier registered trade mark 332540, which also comprised the words "NATURAL SELECTION". The opposition was heard by the Registrar of Trade Marks, and subsequently appealed to the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the applicant's proposed trade mark was deceptively similar to the opponent's registered trade mark, within the meaning of the *Trade Marks Act 1995* (Cth). This required the court to consider the degree of visual, phonetic, and conceptual similarity between the two marks, and the likelihood of consumers being deceived or confused into believing that the goods sold under the applicant's mark originated from the same source as the goods sold under the opponent's mark.

The court applied the established principles for assessing deceptive similarity, which involve considering the marks as a whole, the dominant features of each mark, and the imperfect recollection of a typical consumer. The court found that while the applicant's mark included a device, the words "NATURAL SELECTION" were the dominant and most memorable feature of both marks. Given the identical nature of these words and the relatedness of the goods for which registration was sought, the court concluded that there was a real likelihood of deception or confusion.

Consequently, the Federal Court upheld the opposition and dismissed the applicant's appeal. The registration of trade mark 623592 was refused.