Playground Supplies Pty Ltd v Joachim Grabosch

This case concerned an opposition by Joachim Grabosch to the registration of the trade mark TECHNIC-MOBILO, applied for by Playground Supplies Pty Limited. The applicant sought registration for "Educational and construction toys," while the opponent claimed proprietorship of the similar marks MOBILO and PLASTICANT MOBILO, used in connection with games and playthings. The opponent contended that the applicant's mark closely resembled its own, leading to a likelihood of confusion and deception in the trade, and that the applicant was not entitled to registration.

The delegate of the Registrar of Trade Marks was required to determine whether the applicant was the proprietor of the trade mark TECHNIC-MOBILO at the time of its application, and whether the mark so closely resembled the opponent's existing marks as to be likely to cause confusion. Central to this was the question of who first used the mark MOBILO in Australia and therefore acquired proprietorship at common law, as well as the effect of any assignment of trade mark rights from a predecessor in title.

The delegate applied the principle that proprietorship of a trade mark is acquired by its first public use in Australia in the course of trade, indicating a connection between the goods and the proprietor. The evidence indicated that Milton Bradley GmbH, a predecessor in title to the opponent, had used the mark MOBILO in Australia prior to the applicant's application, including shipping goods bearing the mark to Australia in 1978. Although the applicant argued that trade mark rights had not been assigned, the delegate found that title in the mark had passed to the opponent in 1977, and therefore Milton Bradley's earlier use inured to the opponent's benefit. The delegate concluded that the addition of the word "TECHNIC" to the applicant's mark did not sufficiently distinguish it from the opponent's mark MOBILO, and that the opponent was the proprietor of the mark at the relevant date.

Accordingly, the opposition was allowed, and the applicant's application for registration of the trade mark TECHNIC-MOBILO was refused. The opponent was also awarded costs.