Opposition by Southcorp Brands Pty Limited to registration of trade mark application number 2348596 (classes 16, 33 & 35) – Portrait of a woman (figurative) - in the name of Sunshine Millionaire Wines Group Pty Ltd

Southcorp Brands Pty Limited opposed the registration of trade mark application number 2348596, a figurative mark depicting a woman's portrait, filed by Sunshine Millionaire Wines Group Pty Ltd for goods and services in classes 16, 33, and 35. The opposition was heard by Tracey Berger in her capacity as delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's trade mark was deceptively similar to Southcorp's registered trade mark, specifically the "Penfolds" mark, within the meaning of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the visual and conceptual similarities between the two marks, considering the goods and services for which registration was sought.

In her reasoning, the delegate applied the established principles for assessing deceptive similarity, which require a consideration of the marks as a whole, the degree of visual, phonetic, and conceptual resemblance, and the circumstances in which the marks would be encountered by the relevant public. The delegate found that while the marks shared some conceptual elements related to wine, the visual differences between the applicant's figurative mark and the "Penfolds" word mark were significant enough to prevent deception or confusion among consumers. The delegate concluded that the applicant's mark was not deceptively similar to Southcorp's registered trade mark.

Consequently, the opposition was dismissed, and the trade mark application proceeded to registration.