University of Western Sydney

The University of Western Sydney applied to register the trade mark "ASPIRE FUTURE LEADERS and device" for services in class 41, including education and training. The application was opposed by the Registrar of Trade Marks on the grounds that the proposed mark was deceptively similar to 14 existing registered trade marks and applications, pursuant to section 44 of the *Trade Marks Act 1995* (Cth). The delegate of the Registrar of Trade Marks was required to determine whether the applicant's mark was deceptively similar to any of the cited trade marks.

The delegate considered the legal issue of deceptive similarity under section 10 of the Act, which requires a determination of whether the applicant's mark so nearly resembles the cited marks as to be likely to deceive or cause confusion. This involved assessing the overall impression created by the competing marks, considering the ordinary habits of potential consumers, and giving appropriate weight to visual and phonetic similarities, as well as the meaning and context of the marks. The delegate also had to consider whether the services offered by the applicant were similar or closely related to the goods and services covered by the cited trade marks, and that the priority dates of the cited marks were earlier than that of the applicant's mark.

The applicant argued that its mark, when viewed as a whole and in the context of its leadership program for young students, would not cause confusion. It emphasised the prominence of "FUTURE LEADERS" and the flame device, and submitted that the word "ASPIRE" is widely used, leading the public to distinguish between marks containing it. However, the delegate found that the applicant's services were indeed closely related to those covered by several of the cited trade marks, and that the priority dates of the cited marks were earlier. Applying the established tests for deceptive similarity, the delegate concluded that the applicant's mark was deceptively similar to a number of the cited marks, particularly those that also commenced with "ASPIRE" and were used in relation to educational or training services.

The delegate rejected the application for registration of the trade mark "ASPIRE FUTURE LEADERS and device" on the grounds of deceptive similarity to the cited trade marks, as provided for under section 44(2) of the *Trade Marks Act 1995* (Cth). No grounds for acceptance under section 44(3) or (4) were established.