Unilever Plc

This matter concerned an application for registration of a trade mark, heard by M. Cooper, a delegate of the Registrar of Trade Marks. The applicant sought to register a trade mark for goods in class 3, but the application was opposed on the grounds that the proposed mark was substantially identical with or deceptively similar to a cited registered trade mark, pursuant to section 44 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the delegate was whether the applicant's trade mark was substantially identical with or deceptively similar to the cited mark, considering the goods for which registration was sought were the same or similar and the cited mark had an earlier priority date. The delegate was required to assess the overall impression of both marks on consumers of ordinary intelligence and memory, taking into account the potential for deception or confusion, and to consider the distinctiveness and memorability of the various elements within each mark.

In reaching a decision, the delegate applied the principles of assessing trade mark similarity by considering the marks as a whole, rather than focusing on individual features. The delegate noted that while both marks contained the word "WONDER," this word was common in the relevant market, and therefore its significance in creating deceptive similarity would be discounted. The delegate found that the cited mark possessed distinctive and memorable features, including a stylised 'W' crown device and Chinese characters, which were equally prominent as the word "WONDER." Furthermore, significant visual, conceptual, and aural dissimilarities between the applicant's trade mark and the cited mark, including the stylisation of "WONDER" and the inclusion of a tagline in the applicant's mark, were found to mitigate any risk of confusion. The delegate also considered evidence of the common use of "WONDER" in trade marks for similar goods and the careful purchasing habits of consumers for personal care products.

Ultimately, the delegate was not satisfied that the applicant's trade mark was substantially identical or deceptively similar to the cited mark. Consequently, the ground for rejection under section 44 of the Act was not established, and the delegate accepted the trade mark for possible registration.