Powerchip Australia Pty Ltd v Inverlair Tropical Enterprises Pty Ltd

Powerchip Australia Pty Ltd (the Opponent) opposed the registration of trade mark application number 2299605, DIESELFLASH REMAPPING AND MECHANICAL (Figurative), by Inverlair Tropical Enterprises Pty Ltd (the Applicant). The opposition was heard by Nicholas Smith, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the proposed trade mark, if used in relation to the Applicant's services, was likely to deceive or cause confusion, thereby failing to meet the requirements of section 43 of the relevant legislation. The Opponent had nominated several grounds of opposition, but the decision focuses on the success of these grounds.

The Hearing Officer found that there was no apparent connotation within the trade mark that was likely to result in deception or confusion when used in relation to the Applicant's services. Consequently, the ground of opposition under section 43 was not established. The Hearing Officer concluded that the Opponent had failed to establish any of the grounds of opposition it had nominated.

The trade mark application number 2299605 was permitted to proceed to registration one month from the date of the decision, unless a notice of appeal was served on the Registrar, in which case registration would be stayed pending the outcome of the appeal. The Applicant was awarded costs against the Opponent, in accordance with the general rule that costs follow the event.