R & C Products Pty Ltd v Bathox Bathsalts Pty Ltd

R&C Products Pty Ltd opposed the registration of two trade mark applications, numbers A432327 and A432328, by Bathox Bathsalts Pty Ltd. The applications sought to register the mark "BATHOX BATH TIME" for goods in Class 3 (including soaps, bath oils, bubble bath, and liquid detergent compositions for personal use) and Class 5 (liquid detergent compositions). R&C Products argued that the proposed marks were deceptively similar to its registered trade mark "LORELENE BATH TIME" for similar goods, and that registration would cause deception or confusion.

The delegate of the Registrar of Trade Marks was required to determine whether the applicant's proposed trade marks were substantially identical with or deceptively similar to the opponent's registered trade mark, and whether the goods covered by the applications were the same or of the same description as those for which the opponent's mark was registered. The delegate also considered grounds of opposition based on Section 28 of the Trade Marks Act, including whether the use of the marks would be likely to deceive or cause confusion, be contrary to law, or otherwise not be entitled to protection in a court of justice.

The delegate found that the goods in question were of the same description. Applying the "side by side" test, the delegate concluded that the marks were not substantially identical, noting the distinguishing house marks. However, when assessing deceptive similarity, the delegate considered the overall impression of the marks on ordinary consumers. The delegate noted that while the words "BATH TIME" had descriptive connotations, the applicant's mark, particularly with the prominent display of these words, could be perceived as having trade mark significance and might lead consumers to believe the goods originated from the same source as the opponent's goods. Consequently, the delegate found the marks to be deceptively similar. The delegate also considered the grounds under Section 28, but found that the evidence did not establish that the use of the marks would be contrary to law or otherwise disentitle them to protection in a court of justice, particularly in light of an amendment to the applicant's specification of goods.

The opposition, based on Section 33(1) of the Trade Marks Act, was upheld. The delegate found that the applicant's trade marks were deceptively similar to the opponent's registered trade mark and covered goods of the same description. Therefore, the delegate refused the registration of the trade mark applications.