Opposition by Bluemont Pty Ltd to registration of trade mark application number 2364172 (class 22) for the trade mark –

This matter concerned an opposition by Bluemont Pty Ltd to the registration of trade mark application number 2364172, filed in class 22. The application was for the trade mark "AquaRockBag". The opposition was based on a prior International Registration Designating Australia (IRDA), owned by Roess Nature Group GmbH & Co. KG, which had an earlier priority date. The hearing officer, acting as delegate of the Registrar of Trade Marks, was required to determine whether the grounds of opposition had been established.

The primary legal issues before the hearing officer were whether the goods covered by the application were the same or of the same description as the goods covered by the prior registration, and whether the trade mark applied for was substantially identical or deceptively similar to the registered trade mark. The hearing officer noted that while the application was technically opposed under regulation 4.15A due to it being an IRDA, the substantive considerations were equivalent to those under section 44 of the *Trade Marks Act 1995* (Cth).

In determining the similarity of the goods, the hearing officer found that the goods of the application, namely plastic nets and netting, were the same as the goods of the registration, which included "nets, aforementioned goods also filled with stones". Regarding the trade marks, the hearing officer found that "AquaRockBag" was neither substantially identical nor deceptively similar to the registered mark. This conclusion was reached by comparing the essential features of the marks side-by-side for substantial identity, and by considering the impression left on ordinary persons of average intelligence and memory, without direct side-by-side comparison, for deceptive similarity. The hearing officer found that the common element "rock bag" lacked sufficient distinctiveness to be the essential feature of either mark.

As the opponent had not established any ground of opposition, the hearing officer decided that the trade mark application could proceed to registration. The hearing officer also awarded costs against the opponent in accordance with section 221 of the Act.