Rare Breed Distilling LLC v Lodestar Anstalt

In the Federal Court of Australia, Justice Heath Wilson considered a dispute between Rare Breed Distilling LLC (the applicant) and Lodestar Anstalt (the respondent). The applicant sought to register the trademark "RARE BREED" for use in relation to alcoholic beverages, specifically spirits. The respondent opposed this application, arguing that the proposed mark was deceptively similar to its own registered trademark "LODESTAR" for use in relation to alcoholic beverages.

The primary legal issue before the Court was whether the applicant's proposed trademark "RARE BREED" was deceptively similar to the respondent's registered trademark "LODESTAR" for the purposes of section 44 of the *Trade Marks Act 1995* (Cth). This involved an assessment of the visual, aural, and conceptual similarities between the two marks, as well as the nature of the goods in respect of which the marks were used.

Justice Wilson applied the established principles for assessing deceptive similarity, which require a consideration of the marks as a whole, from the perspective of the ordinary consumer of the goods. The Court found that while the marks shared some conceptual similarities in that they both evoked a sense of uniqueness or distinction, the visual and aural differences were significant. The Court noted that "RARE BREED" and "LODESTAR" do not look or sound alike, and the distinctiveness of each word was such that the average consumer would not be confused into thinking the goods originated from the same source. Consequently, the Court concluded that the marks were not deceptively similar.

The Court ordered that the opposition be dismissed and that the applicant's trademark application proceed to registration.