Restive Tech Pty Ltd v Angel Oliver

Restive Tech Pty Ltd opposed the registration of the trade mark application number 2255308, for the mark "RESTIVE", filed by Angel Oliver, across classes 9, 35, 41, and 42. The matter came before Tracey Berger.

The primary legal issue before the court was whether the applicant's trade mark was deceptively similar to the opponent's registered trade mark, and whether the applicant's mark was, by reason of its identity or similarity to the opponent's registered trade mark, likely to deceive or cause confusion. This involved an assessment of the marks themselves, the goods and services for which they were registered and sought to be registered, and the relevant trading public.

The court considered the principles of deceptive similarity, which require an examination of the marks as a whole, taking into account visual, phonetic, and conceptual similarities. It also considered the likelihood of confusion, which involves assessing whether the ordinary consumer, when encountering the marks in the marketplace, would be led to believe that the goods or services offered under the applicant's mark originate from, or are in some way connected with, the proprietor of the registered mark. The court analysed the specific goods and services in each class to determine the degree of potential overlap and the likelihood of consumer confusion.

The court found that the applicant's trade mark was not deceptively similar to the opponent's registered trade mark, and therefore, the opposition failed.