Re: Opposition by Southcorp Brands Pty Ltd to registration of trade mark application 1849960 (33) - Perfumen (Fancy) in the name of Shanghai Benka Wines Co., Ltd

Southcorp Brands Pty Ltd opposed the registration of the trade mark application 1849960, "Perfumen" (Fancy), filed by Shanghai Benka Wines Co., Ltd. The opposition was heard by Nicholas Smith, acting as delegate for the Registrar of Trade Marks. The core of the dispute concerned whether the proposed trade mark should be registered, given Southcorp's existing rights and the potential for confusion in the marketplace.

The primary legal issue before the delegate was whether the proposed trade mark "Perfumen" was deceptively similar to Southcorp's registered trade mark "PERFUME" for goods in Class 33, specifically alcoholic beverages. This required an assessment under section 60 of the *Trade Marks Act 1995* (Cth), which prohibits the registration of a trade mark if it is deceptively similar to an earlier trade mark and the goods or services are identical or similar. Additionally, the delegate considered whether the application should be refused on the grounds of being contrary to law or otherwise disentitled to registration under section 62A of the Act, particularly in light of the potential for deception or confusion.

In his reasoning, Nicholas Smith applied the established principles for assessing deceptive similarity, which involve considering the visual, aural, and conceptual resemblance between the marks, as well as the similarity of the goods or services. He found that the mark "Perfumen" was deceptively similar to the earlier mark "PERFUME" for goods in Class 33. The delegate concluded that the addition of the letter 'n' to "PERFUME" did not sufficiently distinguish the marks, and that consumers were likely to be confused into believing that the goods offered under "Perfumen" originated from or were endorsed by the owner of the "PERFUME" trade mark. Consequently, the delegate found that the opposition ground under section 60 was established.

The delegate ordered that the trade mark application 1849960 be refused registration.