Shane Miles v Clearview Towing Mirrors Pty Ltd

This decision concerns an opposition filed by Shane Miles against the trade mark application for "POWER SLIDE" by Clearview Towing Mirrors Pty Ltd, for use in relation to storage systems for motor vehicles for storing refrigerators. The opposition was heard by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the trade mark application should be rejected on the grounds of being not capable of distinguishing the applicant's goods from those of other persons under section 41 of the Trade Marks Act 1995 (Cth), or on the grounds of being deceptive or misleading under section 43, or on the grounds of being used contrary to law under section 62(b). The opponent bore the burden of establishing these grounds on the balance of probabilities.

The delegate found that the ordinary signification of "POWER SLIDE" in relation to the claimed goods was a reference to an electronically controlled sliding function for accessing vehicle refrigerators. The delegate considered that other traders would likely desire to use this term or a similar one to describe their own goods, due to the common understanding of "power" indicating an electronic enhancement and "slide" referring to a sliding motion. While the mark was found to be to some extent, but not sufficiently, inherently adapted to distinguish the goods, the delegate concluded that the applicant's use of the mark, often in conjunction with a lightning bolt device or the "CLEAR VIEW POWER SLIDE" mark, did not necessarily demonstrate use of the trade mark as applied for, as these additions could substantially affect its identity.

Ultimately, the delegate determined that the ground of opposition under section 41 was established. Consequently, the delegate refused the registration of the trade mark application.