Watermark Restaurant Pty Ltd v the Watermark Hotel Group Pty Ltd

Watermark Restaurant Pty Ltd opposed the registration of trade mark application 762090, filed by The Watermark Hotel Group Pty Ltd, for services including temporary accommodation and related hotel services, promotional clothing, and printed promotional matter. The opposition was heard by a delegate of the Registrar of Trade Marks.

The primary legal issues before the delegate were whether the applicant's trade mark was substantially identical with or deceptively similar to a registered trade mark owned by the opponent, and whether the services and goods covered by the application were similar or closely related to those covered by the registered trade mark, pursuant to section 44 of the *Trade Marks Act 1995* (Cth). The opponent also raised grounds under sections 41, 42, 43, 58, 59, 60, and 62 of the Act, though some were not pressed or supported by evidence.

The delegate found that while the trade marks "Watermark Restaurant" and "Watermark Hotel" were deceptively similar, the services offered by the applicant (hotel accommodation excluding food and drink) were not similar to the services covered by the opponent's registration (restaurant and kiosk services for food and drink). Furthermore, the goods listed in the application (promotional matter, clothing) were not considered closely related to the opponent's registered services. Consequently, the delegate determined that the conditions for opposition under section 44 were not met.

The opposition was dismissed on the grounds that the applicant's trade mark application did not encompass goods closely related to, or services similar to, the opponent's registered trade mark. The delegate also dismissed the opposition in relation to grounds 7 and 9 due to lack of evidence and declined to consider grounds 41, 42, and 43 on a consequential basis.