Starr Partners Pty Ltd v Dem Prem Pty Ltd (No. 2) [2006] FCA 1269

Starr Partners Pty Ltd v Dem Prem Pty Ltd (No. 2) [2006] FCA 1269

The respondent's mark was not substantially identical with the registered mark because, viewed side by side and as a whole, the marks had significant visual and aural differences, including the essential word Partners in the registered mark, the different words REALTY and Partners, the different spelling of STARR and Star, and different star logos. The respondent's mark was not deceptively similar because the impression of the registered mark left in the mind of an ordinary person would not cause that person, on seeing the respondent's mark, to recall a resemblance so near as to create a real and tangible danger of deception or confusion. The shared idea of a star in word and logo was...

Jurisdiction
Australia
Judgment Date
25 September 2006
Procedural Posture
Trade Mark Infringement Proceeding Under the Trade Marks Act 1995 (cth) / Final Judgment After Hearing
Outcome
Application dismissed with costs.
Legal Topics
['trade Mark Infringement' 'substantial Identity' 'deceptive Similarity' 'real Estate Services' 'costs']
['intellectual Property' 'trade Marks'] ['trade Mark Infringement' 'substantial Identity' 'deceptive Similarity' 'real Estate Services' 'costs']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding Under the Trade Marks Act 1995 (cth) / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondent's unregistered Star REALTY mark was substantially identical with the applicant's registered STARR Partners mark for the purposes of subs 120(1) of the Trade Marks Act 1995 (Cth)." "Whether the respondent's unregistered Star REALTY mark was deceptively similar to the applicant's registered STARR Partners mark for the purposes of ss 10 and 120(1) of the Trade Marks Act 1995 (Cth)." "Whether the applicant should pay the respondent's costs and the costs of the discontinued claims against the former second and third respondents."]

Ratio Decidendi

The respondent's mark was not substantially identical with the registered mark because, viewed side by side and as a whole, the marks had significant visual and aural differences, including the essential word Partners in the registered mark, the different words REALTY and Partners, the different spelling of STARR and Star, and different star logos. The respondent's mark was not deceptively similar because the impression of the registered mark left in the mind of an ordinary person would not cause that person, on seeing the respondent's mark, to recall a resemblance so near as to create a real and tangible danger of deception or confusion. The shared idea of a star in word and logo was...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the respondent's costs." 'The applicant pay the costs of the two directors named as the second and third respondents in the proceeding as originally instituted.']