Wheel Pros LLC v KMC Chain Industrial Co Ltd

Wheel Pros LLC (the applicant) sought to register a trade mark consisting of the word "XD" in relation to goods and services in classes 12 and 25. KMC Chain Industrial Co Ltd (the opponent) opposed the registration on the basis that the proposed mark was deceptively similar to its registered trade mark "XD" (also in class 12) and that the applicant's mark would be likely to deceive or cause confusion. The delegate of the Registrar of Trade Marks found in favour of the opponent and refused the application. The applicant then sought judicial review of the delegate's decision in the Federal Court of Australia.

The primary legal issue before the Court was whether the delegate erred in finding that the applicant's proposed trade mark "XD" was deceptively similar to the opponent's registered trade mark "XD" for goods in class 12, and whether the applicant's mark was likely to deceive or cause confusion. This involved an assessment of the marks themselves, the goods and services for which registration was sought, and the relevant trading public.

The Court applied the established principles for assessing deceptive similarity under the *Trade Marks Act 1995* (Cth). It considered the marks as a whole, noting that both consisted of the identical letters "XD". The Court found that the delegate had correctly identified that the marks were visually identical and that there was no significant difference in their aural or conceptual aspects. Given the identical nature of the marks and the overlap in the goods in class 12 (specifically, wheels for vehicles), the Court concluded that the delegate's finding of deceptive similarity was open to the delegate and that the applicant had not demonstrated that the delegate's decision was affected by an error of law.

The application for judicial review was dismissed.