Re: Opposition by Capricorn Society Limited to registration of trade mark application number 1825148 (class 35, 36) Capmax in the name of Richa Koshal

This matter concerned an opposition by Capricorn Society Limited to the registration of the trade mark "Capmax" (application number 1825148) in classes 35 and 36, filed by Richa Koshal. The opposition was heard by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the proposed trade mark "Capmax" should be refused registration on the grounds of opposition under sections 42(b), 44, 58, and 60 of the *Trade Marks Act 1995* (Cth). The onus was on the Opponent, Capricorn Society Limited, to establish at least one of these grounds on the balance of probabilities.

The delegate considered the ground under section 44, which requires a trade mark to be rejected if it is substantially identical with or deceptively similar to a registered trade mark for similar services with an earlier priority date. The Opponent nominated several trade marks, but the delegate found that two had later priority dates, and another was not registered for services similar to those claimed by the applicant. The delegate also addressed the issue of deceptive similarity, noting that while reputation can be relevant to imperfect recollection, the evidence did not establish that the common element "CAP" was so ubiquitous as to warrant a finding of deceptive similarity. Ultimately, the delegate concluded that there was no real and tangible danger of deception or confusion, considering the visual, phonetic, and conceptual differences between the marks, the limited distinctiveness of the shared element, the dissimilar additional words, the existence of other "CAP" trade marks in the financial services sector, and the likelihood of consumers exercising care. The delegate found that the ideas conveyed by "Capricorn" and "Capmax" were too different to cause confusion.

As none of the grounds of opposition were established, the delegate ordered that the trade mark application proceed to registration.