Re: Trade mark application number 2098342 (class 9) - ASUS Vivobaby (Fancy) in the name of Asustek Computer Incorporation

This matter concerned an application by Asustek Computer Incorporation for the registration of the trade mark "ASUS Vivobaby" in class 9. The application was opposed by a third party, who argued that the proposed mark was substantially identical or deceptively similar to their existing trade mark "VIVID". The hearing officer considered the grounds for opposition under the *Trade Marks Act 1995* (Cth).

The primary legal issue before the hearing officer was whether the applicant's trade mark "ASUS Vivobaby" was substantially identical or deceptively similar to the opponent's registered trade mark "VIVID", within the meaning of section 44 of the *Trade Marks Act 1995* (Cth). This required a comparison of the two marks, considering their visual, aural, and conceptual similarities, as well as the goods and services for which they were registered or sought to be registered.

The hearing officer found that the marks were neither substantially identical nor deceptively similar. The presence of the distinctive word "ASUS" in the applicant's mark, coupled with the word "baby", created a distinct impression from the opponent's mark "VIVID". Furthermore, the goods and services associated with each mark were considered, and the hearing officer concluded that there was no likelihood of confusion or deception among consumers. Consequently, the opposition was dismissed, and the application was accepted for possible registration.