IPONZ has rejected an opposition by Foster’s Group Pacific Limited to the registration of the trade marks shown below filed in the name of Flour Mills of Fiji Limited in Flour Mills of Fiji Limited v Foster’s Group Pacific Limited[2009] NZIPOTM 15.
Fosters, relying on section 17(1)(a), alleged that the trade marks applied for would be deceptive or would cause confused having regard to its own trade marks, shown below:Foster’s had not sold any goods bearing the above trade marks in New Zealand at the relevant date. However, it had sold such goods in Fiji and sought to rely on that use to in support of its opposition.The Assistant Commissioner accepted that Foster’s could rely on the use of its trade marks in Fiji in support of the opposition because of the significant number of people who travel between New Zealand and Fiji. The evidence provided by Foster’s in support of this proposition included details of its share of the Fijian beer market and the number of New Zealand resident departures to Fiji from 1983 to 2007.
Nonetheless, the opposition was unsuccessful. The Assistant Commissioner, having compared the trade marks, found that they looked different and did not share conceptual similarities, and as such use of the marks applied for would not cause deception or confusion.
Interestingly the Assistant Commissioner stated that because the marks being compared were logo marks, the sound of the marks, or the manner in which they would be spoken was not applicable or significant.