Re Bali Brassiere Co Inc's Trade Mark; Re Berlei Ltd's Application [1968] HCA 72

Re Bali Brassiere Co Inc's Trade Mark; Re Berlei Ltd's Application [1968] HCA 72

The applicant failed to establish that the use of the 'bali-bra' mark is likely to deceive or cause confusion or that it is otherwise not entitled to protection within the meaning of s. 28. Furthermore, after many years of honest concurrent use, no substantial actual confusion was demonstrated, and the protection from removal after seven years' registration provided by s. 61 was not displaced by the applicant.

Jurisdiction
Australia
Procedural Posture
Application for Rectification of Trade Mark Register / Final Judgment
Outcome
application dismissed with costs
Legal Topics
['trade Marks' 'rectification of Register' 'likelihood of Confusion' 'distinctiveness' 'deceptive Similarity']
['intellectual Property'] ['trade Marks' 'rectification of Register' 'likelihood of Confusion' 'distinctiveness' 'deceptive Similarity']

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Procedural Posture

Application for Rectification of Trade Mark Register / Final Judgment

Legal Issues

  1. 1 ["Whether the trade mark 'bali-bra' is wrongly remaining in the Register because it is likely to deceive or cause confusion (s. 28 Trade Marks Act 1955-1958)" 'Whether the mark is otherwise not entitled to protection in a court of justice (s. 28(d))' "Whether the mark is deceptively similar to 'berlei' within the meaning of s. 33" "Whether after more than seven years' registration the mark bali-bra can still be expunged under s. 61"]

Ratio Decidendi

The applicant failed to establish that the use of the 'bali-bra' mark is likely to deceive or cause confusion or that it is otherwise not entitled to protection within the meaning of s. 28. Furthermore, after many years of honest concurrent use, no substantial actual confusion was demonstrated, and the protection from removal after seven years' registration provided by s. 61 was not displaced by the applicant.

Court Disposition

application dismissed with costs

Orders

  • ['Application dismissed with costs.']