Trade mark application number 2461296 (class 33) –

Sazerac Brands, LLC (‘Applicant’) applied to register the trade mark TRAVELLER in Class 33 for various alcoholic beverages. The application was examined and an Adverse Examination Report was issued, identifying grounds for rejection under section 44 of the *Trade Marks Act 1995* (Cth) due to a cited registered trade mark, number 1868614, owned by Blackgate Estate Pty Ltd, for the mark TRAVELLER in Class 33 for wine. The Applicant requested a hearing by way of written submissions.

The delegate was required to determine whether the Applicant’s trade mark TRAVELLER was substantially identical with, or deceptively similar to, the cited mark TRAVELLER, and whether the Applicant’s goods were similar or closely related to the goods covered by the cited mark. The delegate also had to consider whether the use of the Applicant’s trade mark was likely to deceive or cause confusion, having regard to the provisions of section 44 and section 10 of the Act.

Applying the principles of deceptive similarity, the delegate considered the overall impression of the marks, allowing for imperfect recollection. While acknowledging the common element of the word TRAVELLER, the delegate found that a side-by-side comparison revealed a total impression of dissimilarity between the two marks. Furthermore, the delegate was satisfied that the Applicant’s goods, encompassing a wide range of spirits and pre-mixed alcoholic beverages, were of the same description as wine, the goods covered by the cited mark, based on their nature, purpose, trade channels, and the likelihood of consumers perceiving them as originating from the same source. Despite this similarity in goods, the delegate concluded that the trade marks were not substantially identical and, crucially, that the TRAVELLER mark for spirits was not deceptively similar to the TRAVELLER mark for wine, as the overall impression conveyed by the marks, when considered in their entirety and allowing for imperfect recollection, was one of dissimilarity.

The delegate found that the third requirement for a valid objection under section 44, namely that the applicant’s trade mark must be substantially identical with or deceptively similar to the cited mark, was not satisfied. Consequently, the application for the trade mark TRAVELLER was not rejected on the grounds of deceptive similarity to the cited mark.