Opposition by Athleta (ITM) Inc. to extension of protection under regulation 17A.33 of the

This matter concerned an opposition by Athleta (ITM) Inc. (the Opponent) to an application for the extension of protection of a trade mark under regulation 17A.33. The Opponent relied on its two Australian registrations for its mark, which it alleged were identical or deceptively similar to the mark for which protection was sought. Evidence was presented regarding the use of the Opponent's mark and the mark in question, including from online sources and a witness statement from the creator of the mark.

The court was required to determine whether the applicant's trade mark was substantially identical with, or deceptively similar to, the Opponent's registered trade marks, and whether the goods or services were similar or closely related. The court also considered the relevant priority dates for the respective trade marks. Furthermore, the court had to assess whether any exceptions to rejection, such as honest concurrent use or other special circumstances, applied, or if continuous use of the applicant's mark prior to the Opponent's priority date could prevent rejection.

The court's reasoning focused on the application of section 44 of the *Trade Marks Act 1995* (Cth). It examined the evidence of use of both marks to assess the degree of similarity and the potential for deception or confusion among consumers. The court considered the nature of the goods and services in relation to which the marks were registered and used, and the respective priority dates. The court also analysed the arguments concerning honest concurrent use and prior continuous use, weighing the evidence presented by both parties in light of the statutory provisions.

The court ultimately found that the applicant's trade mark was not substantially identical with, nor deceptively similar to, the Opponent's registered trade marks for the purposes of section 44. Consequently, the opposition was dismissed, and the extension of protection was granted.