Steven Penson v Aquarian Foundation Inc

Steven Penson opposed the registration of the trade mark application number 2044021, for goods and services in Class 45, by Aquarian Foundation Inc. The opposition was heard by Blake Knowles.

The primary legal issue before the court was whether the trade mark "Aquarian Foundation" was deceptively similar to Penson's registered trade mark "Aquarian". The court was required to consider the degree of visual, phonetic, and conceptual similarity between the two marks, as well as the nature of the goods and services for which registration was sought.

The court applied the principles established in *Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd* and *Parke Davis & Co Ltd v. K.W. Johnson & Co Ltd*, which require an assessment of whether an ordinary and reasonable member of the public, when encountering the applied-for mark, would be deceived or confused into believing that the goods or services originated from the owner of the registered mark. The court found that the marks were deceptively similar, considering the common element "Aquarian" and the nature of the services offered by both parties.

The court ordered that the opposition be upheld and that the trade mark application be refused.