Reckitt and Colman (Australia) Limited v Boden [1945] HCA 12

Reckitt and Colman (Australia) Limited v Boden [1945] HCA 12

On the evidence, considering the differences between the respective goods, their uses, appearances, purchasers, channels of trade, and the lack of any actual confusion, the applicant discharged the onus to show registration of 'Dekol' would not likely deceive or cause confusion. The appeal should be dismissed.

Parties
Appellant/opponent: Reckitt & Colman (Australia) Limited; Respondent/applicant: Alexander Boden (trading as Alex. Minter & Co.)
Jurisdiction
Australia
Procedural Posture
Appeal (opposition to Trade Mark Registration) / Appeal to High Court From Deputy Registrar of Trade Marks
Outcome
Appeal dismissed
Legal Topics
Likelihood of Deception in Trade Mark Registration, Onus of Proof in Trade Marks Opposition, Comparison of Goods/marks
Intellectual Property Trade Marks Likelihood of Deception in Trade Mark Registration Onus of Proof in Trade Marks Opposition Comparison of Goods/marks

Case Brief

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Parties

Reckitt & Colman (Australia) Limited

Appellant/opponent

Alexander Boden (trading as Alex. Minter & Co.)

Respondent/applicant

Procedural Posture

Appeal (opposition to Trade Mark Registration) / Appeal to High Court From Deputy Registrar of Trade Marks

Legal Issues

  1. 1 Whether the registration of 'Dekol' as a trade mark for wood preserving oils and paints is likely to deceive due to resemblance to 'Dettol', a registered trade mark for disinfectants and germicides.
  2. 2 Whether the goods are of the same description within meaning of Trade Marks Act.
  3. 3 What is the appropriate test and onus for likelihood of deception/confusion.

Ratio Decidendi

On the evidence, considering the differences between the respective goods, their uses, appearances, purchasers, channels of trade, and the lack of any actual confusion, the applicant discharged the onus to show registration of 'Dekol' would not likely deceive or cause confusion. The appeal should be dismissed.

Court Disposition

Appeal dismissed

Orders

  • Application to register 'Dekol' trade mark in class 1 accepted; opposition dismissed; costs awarded against appellant.