Sym Choon and Co Ltd v Gordon Choon Nuts Ltd [1949] HCA 54

Sym Choon and Co Ltd v Gordon Choon Nuts Ltd [1949] HCA 54

Registration of the applicant’s mark should be refused because, considering the marks themselves and their normal use, there is a real likelihood that the applicant’s mark would deceive or confuse purchasers due to the substantial similarities in the core features of the parties’ marks and the inclusion of a similar company name, particularly as both companies deal in similar goods in the same market area.

Parties
Appellant: Sym Choon & Co. Ltd.; Appellant: Thomas George Sym Choon; Respondent: Gordon Choons Nuts Ltd.; Intervener: Registrar of Trade Marks
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Deputy Registrar of Trade Marks to High Court
Outcome
Appeal allowed. Application for registration refused.
Legal Topics
Trade Mark Registration, Likelihood of Deception, Opposition Proceedings, Costs of Registrar
Intellectual Property Trade Mark Registration Likelihood of Deception Opposition Proceedings Costs of Registrar

Case Brief

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Parties

Sym Choon & Co. Ltd.

Appellant

Thomas George Sym Choon

Appellant

Gordon Choons Nuts Ltd.

Respondent

Registrar of Trade Marks

Intervener

Procedural Posture

Appeal / Appeal From Deputy Registrar of Trade Marks to High Court

Legal Issues

  1. 1 Whether the applicant's trade mark is 'likely to deceive' within the meaning of s. 114 of the Trade Marks Act 1905-1948
  2. 2 Whether similarities in names and business proximity are relevant in assessing likelihood of deception
  3. 3 Whether registration should be refused despite goods being in different classes

Ratio Decidendi

Registration of the applicant’s mark should be refused because, considering the marks themselves and their normal use, there is a real likelihood that the applicant’s mark would deceive or confuse purchasers due to the substantial similarities in the core features of the parties’ marks and the inclusion of a similar company name, particularly as both companies deal in similar goods in the same market area.

Court Disposition

Appeal allowed. Application for registration refused.

Orders

  • Appeal allowed with costs.
  • No order as to costs of Registrar.