Taxand Economic Interest Grouping v Rosa Westland & Graham Westland

This matter came before the court concerning an opposition by Taxand Economic Interest Grouping to the registration of a trade mark by Rosa Westland and Graham Westland. The Opponent, Taxand, is a global organisation of independent tax advisory firms established in 2005, with a presence in Australia since 2007. The Applicants, Rosa and Graham Westland, operate a business as a sole trader providing business management consulting and tax agent services, and sought to register a trade mark for their business.

The primary legal issue before the court was whether the Applicants' proposed trade mark was substantially identical with, or deceptively similar to, existing registered trade marks owned by the Opponent, pursuant to section 44 of the *Trade Marks Act 1995* (Cth). This required the court to consider the similarity of the marks and the goods or services for which they were to be registered, as well as the relevant priority dates. The court also had to determine whether any exceptions to rejection under section 44, such as honest concurrent use or continuous use prior to the Opponent's priority date, were applicable.

The court considered evidence regarding the global reputation and prior Australian registrations of the Opponent under the brand TAXAND, as well as evidence from the Applicants detailing their adoption of the trade mark, which they stated was derived from the nature of their services and the second syllable of Mr Westland's surname. The court applied the principles of section 44, which mandates rejection of an application if the proposed mark is substantially identical or deceptively similar to a registered mark for similar goods or services, provided the priority dates are aligned. The court also had regard to section 10, defining "deceptively similar" as a mark that nearly resembles another to the likelihood of deception or confusion.

The court found that the Applicants' trade mark was not substantially identical with, nor deceptively similar to, the Opponent's cited marks. Consequently, the opposition was dismissed, and the application for registration was accepted.