QANTAS Airways Ltd v Danniel Amadio

This matter concerned an opposition by QANTAS Airways Ltd to an application by Daniel Amadio to register the trade mark "FLYING KANGAROO" in relation to various services, including air transport services. The hearing was conducted by Iain Thompson, a delegate of the Registrar of Trade Marks. QANTAS, the opponent, argued that the proposed mark was deceptive and that it had established significant reputation and goodwill in its own "flying kangaroo" trade mark, which had been in use since 1944 and was a well-recognised symbol of the airline.

The primary legal issue before the delegate was whether the applicant's proposed trade mark, "FLYING KANGAROO," was likely to deceive or cause confusion, given QANTAS' extensive use and recognition of its own "flying kangaroo" device as a trade mark for its air transport services. The delegate was required to consider the provisions of the *Trade Marks Act 1995* (Cth), specifically section 55, which mandates the Registrar to decide whether to refuse or register a trade mark having regard to any grounds on which the application was opposed.

In reaching his decision, the delegate considered the extensive evidence presented by QANTAS regarding its long-standing and widespread use of the "flying kangaroo" symbol, which had evolved over many years and was deeply associated with the airline's identity and services. The delegate found that the applicant's proposed mark was identical to the opponent's well-established trade mark in respect of identical services. Consequently, the delegate concluded that the use of the applicant's mark would be likely to deceive or cause confusion among consumers, leading them to believe that the services offered under the applicant's mark were provided by, or associated with, QANTAS.

Accordingly, the delegate refused to register the trade mark application. QANTAS Airways Ltd, having been successful in its opposition, was awarded its costs against the applicant on the official scale.