Visa International Service Association v Infinity One

Visa International Service Association ("Visa") opposed the registration of a series trade mark application by Infinity One ("Infinity") for "INFINITY ONE" and "INFINITY 1" in relation to credit card transaction processing services. Visa relied on its registered trade mark "Infinite" for similar financial services, arguing that Infinity's proposed marks were substantially identical or deceptively similar to its own registered mark, and that the services were similar. The opposition was heard by a delegate of the Registrar of Trade Marks.

The delegate was required to determine two primary legal issues: first, whether the services for which Infinity sought registration were similar to those covered by Visa's registered trade mark; and second, whether the trade marks "INFINITY ONE" and "INFINITY 1" were substantially identical or deceptively similar to Visa's trade mark "Infinite". The delegate also needed to consider the relevant statutory provisions, including the definitions of "deceptively similar" and "similar services" under the *Trade Marks Act 1995* (Cth), and apply established case law principles for comparing trade marks and services.

The delegate reasoned that credit card transaction processing services fell within the scope of Visa's registered services, specifically under "credit" and "electronic funds transfer services," and more broadly under "Financial services." The delegate found that while the marks were not substantially identical due to differences in spelling, termination, syllables, and word function, they were deceptively similar. This conclusion was based on the established test for deceptive similarity, which involves considering the overall impression of the marks on consumers with imperfect recollection, the relevant trade channels, and the usages within the particular trade. The delegate noted that the addition of "ONE" and "1" to "INFINITY" did not sufficiently distinguish the marks from "Infinite" in the context of financial services.