Opposition by Luma Stiftung to registration of trade mark application 2041941 (41) – The Lume – in the name of Grande Projects Pty Ltd

This matter concerned an opposition by Luma Stiftung to the registration of trade mark application number 2041941, "The Lume," in the name of Grande Projects Pty Ltd. The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks. The sole ground of opposition relied upon by the Opponent was under section 44 of the *Trade Marks Act 1995* (Cth), alleging deceptive similarity between the applied-for mark and existing registered trade marks.

The legal issue before the delegate was whether the trade mark application for "The Lume" should be refused registration on the grounds that it was deceptively similar to one or more of the eleven trade marks listed by the Opponent. The Opponent contended that the shared element "lum" in the marks created a likelihood of confusion among consumers. The delegate was required to determine if the applicant's mark was deceptively similar to any of the Opponent's cited marks, considering the visual, aural, and conceptual aspects of the marks, and the market context.

The delegate reasoned that while there was a shared element "lum" and some marks were registered for similar services, the presence of numerous "lum"-prefixed marks in the market for entertainment services made it unlikely that consumers would be confused solely by this shared element. Furthermore, the delegate found that "The Lume" was visually and aurally distinct from the cited marks, particularly due to the inclusion of the definite article and different suffixes. Conceptually, "The Lume" was seen as denoting a place or entity, whereas the cited marks often alluded to light. Consequently, the delegate concluded that the respective marks were not deceptively similar and the Opponent had failed to establish its ground of opposition under section 44.

The delegate ordered that the trade mark application number 2041941 may proceed to registration, subject to a one-month waiting period from the decision date, unless an appeal was filed. The Applicant was awarded costs against the Opponent.