Twentieth Century Fox Film Corporation v Michael F Durkan

Twentieth Century Fox Film Corporation (Fox Corporation) opposed the registration of the trade mark "BRAVEHEART THE MUSICAL" by Michael F Durkan for T-shirts and caps (class 25) and theatre musical production (class 41). The opposition was heard by the Registrar of Trade Marks.

The Registrar was required to determine whether the proposed registration of "BRAVEHEART THE MUSICAL" would be likely to deceive or cause confusion contrary to section 43 of the *Trade Marks Act 1995*, whether Mr Durkan was the owner of the trade mark contrary to section 58, and whether the mark was deceptively similar to a trade mark that had acquired a reputation in Australia, contrary to section 60.

The Registrar found that while the word "BRAVEHEART" had acquired significant public recognition due to the success of Fox Corporation's film of that name, Fox Corporation had not used "BRAVEHEART" as a trade mark to distinguish its goods or services. Consequently, the grounds under sections 58 and 60 were dismissed. However, the Registrar determined that the use of "BRAVEHEART THE MUSICAL" in relation to T-shirts, caps, and theatre musical productions would likely deceive or cause confusion by suggesting an association with the makers of the "BRAVEHEART" film. Therefore, the opposition under section 43 was upheld.

The Registrar refused to register the trade mark "BRAVEHEART THE MUSICAL" and ordered Mr Durkan to pay the costs of Fox Corporation.