Re: Opposition by Gap (ITM) Inc. to registration of trade mark applications number 1946704 (class 25) – CLOTHING THE GAP (Plain Words) and number 1988866 (Class 25) – CLOTHING THE GAP (Fancy) - in the name of Spark Health Australia Pty Ltd

This matter concerned opposition proceedings brought by Gap (ITM) Inc. against two trade mark applications by Spark Health Australia Pty Ltd: application number 1946704 for the mark CLOTHING THE GAP (Plain Words) and application number 1988866 for the mark CLOTHING THE GAP (Fancy), both in Class 25 for clothing. The opposition was heard by Kate Doherty, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the applicant's trade marks were substantially identical with, or deceptively similar to, trade marks registered or applied for by the opponent, pursuant to section 44 of the *Trade Marks Act 1995* (Cth). The opponent also relied on grounds under sections 60 and 62A, but the decision focused on section 44.

The Hearing Officer found that the applicant's trade marks were deceptively similar to the opponent's existing marks. Crucially, the Hearing Officer determined that the applicant had not established continuous use of its trade marks prior to the priority date of the opponent's marks. Consequently, the ground of opposition under section 44 was established for both applications.

As a result, the Hearing Officer ordered that trade mark applications numbers 1946704 and 1988866 would not proceed to registration. The applicant was also directed to pay the opponent's costs, with the costs for the two applications to be apportioned.