Unleash Health Pty Ltd

This matter concerns a trade mark application by Unleash Health Pty Ltd for the figurative mark "unleash HEALTH" across classes 9, 35, 41, and 42. The application was initially examined and a ground for rejection was raised under section 44 of the *Trade Marks Act 1995* (Cth) due to the mark being deceptively similar to earlier registered trade marks. Despite initial submissions from the applicant and further examination reports, the applicant exercised its right to be heard before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the applicant's trade mark application should be rejected under section 44 of the *Trade Marks Act 1995* (Cth). This section mandates rejection if the applicant's trade mark is substantially identical with, or deceptively similar to, an earlier registered trade mark in respect of similar or closely related goods or services, and the priority date of the applicant's mark is not earlier than that of the earlier mark. The delegate was required to consider the nature of the goods and services covered by the application and compare them with those of the cited earlier registered trade marks, applying the principles of similarity and deceptive similarity as defined in the Act and elaborated in case law.

The delegate's reasoning focused on a fresh consideration of the section 44 ground for rejection, independent of the examiner's previous findings. The delegate noted that one of the initially cited trade marks had lapsed. The remaining cited trade marks had earlier priority dates. The delegate then embarked on a detailed comparison of the goods and services, applying the principles from *Jellenik's Application* and *Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd*, which involve examining the nature, purpose, use, trade channels, and consumer perception of the goods and services. The delegate found that the applicant's goods and services were not similar to, nor of the same description as, the goods and services covered by the remaining earlier registered trade marks. Consequently, the delegate was satisfied that the section 44 ground for rejection was not established.

The delegate ordered that the trade mark application be accepted.