Somerton Park Kindergym Pty Ltd

Somerton Park Kindergym Pty Ltd sought to register a trade mark. The Registrar of Trade Marks rejected the application. The applicant appealed this decision to the Federal Court of Australia.

The primary legal issue before the Court was whether the Registrar's grounds for rejection were made out. Specifically, the Court had to consider whether the trade mark applied for was substantially identical or deceptively similar to an earlier trade mark, and whether any common elements of the trade marks were merely descriptive and common to the trade. The Court also had to determine if the use of the trade mark was likely to deceive or cause confusion.

The Court found that the element common to the trade marks in question was descriptive and common to the trade. Consequently, the Court was not satisfied that the use of the applicant's trade mark was likely to give rise to deception or confusion. The appeal was therefore allowed.