Opposition by Yoko Luscher and Andries Mostert to registration of trade mark application number 1797786 (class 33) – BRAVE NEW WORLD - in the name of Accolade Wines Australia Limited.

This matter concerned an opposition by Yoko Luscher and Andries Mostert to the registration of the trade mark application number 1797786, for the mark "BRAVE NEW WORLD" in class 33, filed by Accolade Wines Australia Limited. The opposition was heard by Hearing Officer Louise Tuohy.

The primary legal issue before the Hearing Officer was whether the applicant, Accolade Wines Australia Limited, was the owner of the trade mark "BRAVE NEW WORLD" within the meaning of section 58 of the *Trade Marks Act*. To succeed on this ground, the Opponents were required to establish that their trade mark, "BRAVE NEW WINE", was identical or substantially identical to the applicant's mark, that the services (wine) were of the same kind, and that the Opponents had an earlier claim to ownership based on authorship and use prior to the applicant's filing date and any use.

The Hearing Officer applied the test for substantial identity of trade marks as stated by Windeyer J in *Shell Company of Australia v Esso Standard Oil (Australia) Ltd*, which involves a side-by-side comparison of the marks, noting similarities and differences, and assessing their importance in light of the essential features and the total impression. In this instance, the Hearing Officer found a clear difference between the trade marks "BRAVE NEW WORLD" and "BRAVE NEW WINE", noting that the words "WORLD" and "WINE" have different meanings, appearances, and interpretations. Consequently, a total impression of dissimilarity emerged, leading to the conclusion that the trade marks were not substantially identical. As the Opponents failed to establish this crucial first factor, they could not succeed on the section 58 ground of opposition.

The Hearing Officer decided that the Opponents had failed to establish any of the grounds of opposition nominated. Accordingly, Trade Mark 1797786 was permitted to proceed to registration, subject to the usual one-month waiting period and any appeal proceedings. The Opponents were ordered to pay the costs of the applicant on the official scale.