RE.LE.VI. SpA v Carter Holt Harvey Limited

RE.LE.VI. SpA ("the opponent") opposed the trade mark application by Carter Holt Harvey Limited ("the applicant") for the mark FRESH LINEN, filed in classes 5 and 21 for air fresheners, air neutralisers, and related dispensers. The opponent, a manufacturer of detergents, deodorants, and air fresheners, relied on its Australian registrations of the trade mark LINEA FRESH, used since 1994. The opposition was heard by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the applicant's trade mark FRESH LINEN was capable of distinguishing the applicant's goods under section 41 of the *Trade Marks Act 1995* (Cth), whether it was substantially identical or deceptively similar to the opponent's registered trade marks under section 44, and whether it was deceptively similar to a trade mark with a reputation in Australia under section 60. The opponent argued that FRESH LINEN was not inherently adapted to distinguish the goods and lacked factual distinctiveness due to insufficient evidence of use. It also contended that FRESH LINEN was substantially identical and deceptively similar to its LINEA FRESH marks, and that its marks had acquired a reputation in Australia.

The delegate found that the applicant's trade mark FRESH LINEN was capable of distinguishing the goods in terms of section 41, declining to disturb the examiner's initial finding that the mark was inherently capable of distinguishing. The delegate reasoned that while the opponent argued the mark was descriptive, the phrase FRESH LINEN had a common understanding in the accommodation industry relating to clean sheets, which appealed to a sense of touch rather than smell, thus not being ordinarily used to indicate the specific characteristics of air fresheners. Consequently, no evidence of use was required to support the application on this ground. Furthermore, the delegate determined that FRESH LINEN was neither substantially identical nor deceptively similar to the opponent's LINEA FRESH trade marks. The delegate noted significant visual and phonetic differences, including the presence of a flower device in the opponent's marks and the distinct meanings of "linen" and "linea," concluding that the marks did not create a deceptive impression.

As the opposition failed on all grounds, the delegate dismissed the opposition.