Opposition by Slogger Pty Ltd ATF S&S Family Trust and Whack Sports Melbourne Pty Ltd to registration of trade mark application number 1870843 (class 25, 28) in the name of Whack Sports Brisbane Pty Ltd.

This matter concerned an opposition by Slogger Pty Ltd ATF S&S Family Trust and Whack Sports Melbourne Pty Ltd to the registration of trade mark application number 1870843 in class 25 and 28, filed by Whack Sports Brisbane Pty Ltd. The opposition was heard by the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant's trade mark, which comprised the word "WHACK" in a distinctive font with a graphic element, was deceptively similar to the opponents' registered trade marks, specifically "SLOGGER" and "WHACK SPORTS". The Court was required to assess the likelihood of deception or confusion among consumers, considering the visual and phonetic similarities between the marks, as well as the nature of the goods and services in respect of which the marks were used.

In its reasoning, the Court applied the established principles for assessing deceptive similarity under the *Trade Marks Act 1995* (Cth). It considered the "imperfect recollection" test, focusing on the overall impression of the marks and the potential for confusion by a reasonable member of the purchasing public. The Court found that while there were some similarities, the distinctiveness of the graphic element and the differing overall appearance and sound of the marks, when considered in conjunction with the specific goods and services, did not create a sufficient likelihood of deception or confusion. The Court also considered the evidence of use by the opponents and the applicant.

The Court dismissed the opposition.