Norelle Seymour v Portmans Consolidated Pty Ltd

This matter concerned an opposition by Portmans Consolidated Pty Ltd ("the opponent") to the registration of trade mark application number 709849 by Norelle Seymour ("the applicant"). The applicant sought to register a trade mark for clothing, footwear, headgear, and hairdressing and beautician services. The opposition was heard by a delegate of the Registrar of Trade Marks.

The sole ground of opposition pursued was under section 60 of the *Trade Marks Act 1995* (Cth), which allows opposition if the applicant's trade mark is substantially identical with or deceptively similar to a trade mark that had acquired a reputation in Australia before the priority date, and its use would be likely to deceive or cause confusion due to that reputation. The priority date for the application was 3 June 1996. The delegate was required to assess the risk of deception or confusion, assuming the applicant's mark would be used for the specified goods and services, in light of evidence of the opponent's reputation.

The delegate found that while the opponent had a substantial reputation in its trade mark PORTMANS and the slogan GET THE LOOK, particularly in relation to the retailing of ladies' clothing, the evidence did not establish that the slogan GET THE LOOK had acquired significant distinctiveness as a trade mark for goods themselves, separate from the PORTMANS brand. The delegate noted that the use of GET THE LOOK was always subordinate to PORTMANS and that the words themselves were ordinary language used in the fashion industry. The delegate concluded that the applicant's trade mark, THE LOOK THAT GETS THE LOOK, was not deceptively similar to the opponent's slogan, and that any perceived similarity would likely be discounted by consumers as a general reference to achieving a desired appearance.

Consequently, the delegate found that the opponent had not established any ground of opposition. The application was therefore accepted for registration for all specified goods and services, and the applicant was awarded costs.