Opponent: Elena Szentiványi of Henry Hughes IP Ltd

Holder: Megan Evetts of Counsel instructed by Baker McKenzie

2026 ATMO 41

Trade Marks Act 1995 (Cth) - opposition to extension of protection under regulation 17A.33 - ss 44 and 60 considered - no ground established - protection granted.

1. This is a decision in respect of oppositions by GUROK TURIZM VE MADENCILIK ANONIM SIRKETI ('Opponent') under reg 17A.33 of the Trade Marks Regulations 1995 (Cth)[1] to the extension of protection of the following International Registrations Designating Australia ('IRDAs')[2] in the name of LOUIS VUITTON MALLETIER ('Holder'):

('LV & Devices')

Class 21: Tableware; table plates; drinking vessels; drinking glasses; mugs; cups; saucers; tea services; teapots; sugar bowls; tea caddies; coffee services; non-electric coffeepots; non-electric kettles; drinking straws; cocktail stirrers; ice-cube tongs; mixers for beverages [shakers]; drinking bottles; pocket flasks; bottles; decanters; corkscrews, electric and non-electric; bottle openers, electric and non-electric; wine aerators; wine pourers; liqueur sets; trays for household use; place mats, neither made of paper nor of textile materials; fitted picnic baskets, including dishes; vases; candlesticks; candle holders (candlesticks); perfume burners; toilet cases; shaving brushes; shaving brush holders; combs; shoe brushes; shoe trees; shoe horns; pots; flower pots; flower-pot covers, not of paper; window-boxes; watering cans; coin banks (piggy banks); art objects made of porcelain, ceramic, earthenware, terracotta or glass; figurines of porcelain, ceramic, earthenware, terracotta or glass; porcelain ware; bowls; egg cups; salt cellars; pepper pots; cake molds; candle extinguishers; electric and non-electric aromatic oil diffusers, other than reed diffusers; perfume vaporizers; toilet utensils, namely: cosmetic utensils, sanitary and beauty care utensils, namely, makeup removing apparatus, applicators for cosmetics; brushes; toothbrushes; eyelash brushes; eyebrow brushes; cosmetic utensils; make-up brushes; make-up sponges; powder puffs; empty powder compacts; waste paper baskets; decorative glass bowls; statues of porcelain, ceramic, earthenware, terracotta or glass; litter boxes for pets; cages for pets; feeding bowls for pets; automatic dispensing bowls for pets; animal grooming gloves; combs for animals; mangers for animals; toilet utensils for animals, namely: cosmetic utensils, sanitary and beauty care utensils for animals, namely, toothbrushes for animals; dustbins for household use; brooms; non-electric fruit presses for household use; buckets; brushes for pets; water fountains for pets; scoops for disposing of pet waste for household use.

1. The Applications were examined and advertised as accepted for possible extension of protection on 16 July 2024.
2. On 16 September 2024, the Opponent filed Notices of Intention to Oppose the Applications. On 30 September 2024, the Opponent filed identical Statements of Grounds and Particulars ('SGP'). The Holder filed Notices of Intention to Defend the oppositions on the 166 Mark on 18 October 2004 and the 440 Mark on 6 November 2024.
3. On both Applications the Opponent filed the same Evidence in Support ('EIS') on 24 January 2025, the Holder filed the same Evidence in Answer ('EIA') on 29 April 2025 on the 166 Mark and 30 April 2025 on the 440 Mark, and on both Applications the Opponent filed the same Evidence in Reply ('EIR') on 7 July 2025.
4. The parties were given the opportunity to either request an oral hearing or a hearing by way of written submissions. The parties requested an oral hearing by video conference. The Opponent filed written submissions on 12 February 2026 prepared by Elena Szentiványi of Henry Hughes IP Ltd. The Holder filed written submissions prepared by Megan Evetts of Counsel on 19 February 2026. At the hearing on 26 February 2026, Elena Szentiványi (observed by Zoe Dewhurst of Henry Hughes IP Ltd) appeared on behalf of the Opponent and Megan Evetts instructed by Elizabeth White and Joanna Oud of Baker McKenzie appeared on the Holder's behalf. I have decided these matters based on the particulars set out in the SGP, the evidence of the parties and the written and oral submissions of the parties.

1. Regulation 17A.34 provides that an extension of protection may be opposed on any of the grounds on which an IRDA may be rejected and on the grounds set out in ss 58 to 61 and 62A.
2. The SGP nominates grounds of opposition under s 44 and s 60 limited to the Holder's goods in class 21. The Opponent carries the burden of establishing this ground of opposition[3] on the balance of probabilities.[4] The date at which the rights of the parties are to be determined is the Relevant Date.[5]

1. The parties filed the following evidence in this matter:

Tanya Christine Carter, employee of Henry Hughes, the Opponent's representative ('Carter 1')

Laure Kainane, Senior Legal Advisor Intellectual Property of the Holder ('Kainane')

1. Carter states that the facts and information in Ms Carter's declaration includes information provided by the Opponent's Turkish attorneys, the Head of Export Sales of the Opponent and the Purchasing Manager for Rinkit Limited ('Rinkit').

1. According to Carter, the Opponent was established in 1994 in the Republic of Türkiye and has a leading role in the glassware industry ranking 5th among the world's glassware manufacturers. The Opponent exports to 140 countries around the world, including to Australia. The Opponent's range of glassware is sold under trade mark LAV ('Opponent's Mark') and includes wine glasses, flutes, tumblers, drink glasses, mugs, bowls, and storage jars. The Opponent's Mark also features prominently on the Opponent's websites at www.lav.com.tr and www.lav-us.com, in product catalogues, on social media platforms Instagram, Facebook, X and YouTube and other promotional material. Carter exhibits a 2024 product catalogue and undated extracts from the Opponent's United States of America ('USA') Facebook and Instagram pages. I note use of the Opponent's Mark including in the following format: ('LAV Device').

1. Carter claims first use of the Opponent's Mark in Australia in 2012. The Opponent's glassware distributors are Rinkit and R Weatherdon & Co Pty Ltd ('Weatherdon'). Carter states that in 2024, after the Relevant Date, Rinkit sold in excess of 290,000 units in Australia. Carter exhibits screenshots from:
   • Rinkit's retail website at rinkit.com.au dated in 2025 where I note use of the Opponent's Mark and the LAV Device (in black and white) on drinking glasses and cups, carafes and bowls and Wayback Machine screenshots from 2019, 2021, 2022, and prior to the Relevant Date in 2023;
   • Rinkit's wholesale website at 'rinkitwholesale.com.au' dated in 2025 and Wayback Machine screenshots from 2022 and 2023. I note use of the Opponent's Mark and the LAV Device (in white); and
   • Weatherdon's website at 'weatherdon.com.au' dated in 2025 where I note use of the Opponent's Mark and the LAV Device on drinking glasses and Wayback Machine screenshots in 2022 and prior to the Relevant Date in 2023.
2. Carter states that Rinkit has been a distributor of Opponent's glassware since 2019 and Rinkit's main avenues of sale are its websites, Amazon and Bunnings, exhibiting undated 'amazon.com.au' screenshots of the Opponent's glassware and a selection of nine Australian reviews in 2022 and 2023 posted by verified purchasers in Australia. I note the reviewers do not mention the LAV Marks.
3. Carter states that the Opponent's glassware is also sold through Australian retailers such as Kmart, Spotlight, Myer and Bunnings, exhibiting screenshots showing examples of LAV branded glasses from the Spotlight website at 'spotlightstores.com' dated in 2025, two Wayback Machine screenshots dated in early December 2023, and the Bunnings website at 'bunnings.com.au' exhibiting undated screenshots.
4. Carter provides:
   • confidential wholesale figures for the Opponent's glassware under the Opponent's Mark in Australia from 2012 to 2024 in EURO dollars which are significant; and
   • a selection of 20 invoices dated before the Relevant Date showing sales to the following distributors and retailers in Australia:
     • ➢ Spotlight - four invoices dated between 2019 and 2023;
     • ➢ Weatherdon - two invoices dated in 2019 and 2020;
     • ➢ Rinkit - two invoices dated in 2020 and 2022;
     • ➢ Classica Kitchen & Giftware - three invoices dated between 2021 and 2023; and
     • ➢ Myer - one invoice dated in 2022.
5. Carter provides details of the Opponent's Australian trade mark registrations, which appear below ('LAV Marks'):

Class 21: Household or kitchen utensils and containers; combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes; dishes, jars, cookie jars, glasses, cups, trays, egg cups, coffee cups, saucepans, carafes, cake molds, teapots, tableware (other than knives, forks and spoons) made of glass and porcelain, namely, bowls, mugs, plates, salt and pepper shakers, gravy boats, jugs and vases; statuettes, statues and works of art of glass and porcelain

Class 39: Transport; packaging and storage of goods; travel arrangement; transport commission agency services in the nature of arranging excursions for tourists, freight commission agency services in the nature of freight brokerage, ship agency services in the nature of freight ship transport, tourist bureau services in the nature of tourist agency services and tour guide services, making reservations and bookings for transportation and travel and tour tickets, tour organization services

Class 43: Services for providing food and drink; temporary accommodation; arranging temporary housing accommodations, namely, hotels, motels, holiday camps, boarding houses

Class 21: Utensils for household purposes; kitchen utensils; cooking utensils, non-electric; services (dishes); pots; cooking pots; frying pans; stew-pans; bottle openers, electric and non-electric; flower pots; straws for drinking; statues of porcelain, ceramic, earthenware, terra-cotta or glass; figurines of porcelain, ceramic, earthenware, terra-cotta or glass; vases; cups; works of art of porcelain, ceramic, earthenware, terra-cotta or glass; glass, unworked or semi-worked, except building glass; mosaics of glass, not for building; powdered glass for decoration; glass wool, other than for insulation.

1. Carter provides undated screenshots of packaging of the Opponent's glassware obtained from Rinkit's retail website. I note the packaging displays the LAV Device.

1. Kainane is 535 pages and therefore, only a brief summary is set out below.

1. Kainane attests that the Holder is a French luxury fashion and leather goods company incorporated in 1985, originating from Louis Vuitton who established the Louis Vuitton brand in 1854. The Holder produces and sells a broad range of products under the Louis Vuitton brand including clothing, footwear, jewellery, watches, perfume, suitcases, trunks, bags, leather goods, accessories, furniture and homewares exclusively through its own boutiques, its web site at 'www.louisvuitton.com' and in high quality retail stores. The Holder's affiliates operate more than 500 stores worldwide in more than 60 different countries.

1. According to Kainane, the Holder opened the first Louis Vuitton branded stores in Australia in 1986 in Sydney and Melbourne. The Holder and its Australian affiliated company Louis Vuitton Australia Pty Ltd operate 13 retail stores in Australia. The Holder's goods are also available online through the Holder's Australian website at 'http://au.louisvuitton.com' ('Australian Website')
2. The LV & Devices and LV Device were designed by George Vuitton, the son of Louis Vuitton, in 1896 for use in relation to a line of travel trunks. The Holder has distributed, advertised, marketed and offered for sale and sold a wide range of products in Australia bearing the LV & Devices and LV Device since 1987. The Trade Marks have been used on and in relation to goods such as handbags, wallets, watches, jewellery, footwear, clothing, hats, gloves, scarves, silk squares, belts, trunks, suitcases, perfumes, sunglasses. technology accessories, hair accessories and home textiles. Kainane annexes screenshots including Wayback Machine screenshots from the Australian Website from 2017 to 2025.
3. Kainane claims that the LV & Devices and LV Device have been used in Australian in respect of various household items and tableware, including glassware, vases, drinking vessels including cups and drinking straws, bowls, trays, plates, pet bowls and drinking trays. The Holder has sold glassware and tableware in Australia since at least 2017. Kainane annexes screenshots including Wayback Machine screenshots from the Australian Website from 2023 to 2025. I note that the Holder's goods range in price from $395 for a silk square to $163,000 for a trunk. I also note use of the Trade Marks before the Relevant Date is only shown for ceramic vases, reusable cups and a dog carrier.
4. Kainane attests that revenue generated from the Holder's Australian operations is significant and annexes copies of financial statements and reports for the years 2017 to 2023 for Louis Vuitton Australia Pty Ltd.
5. Kainane states that the Holder advertises and promotes the Holder's goods under the LV & Devices and LV Device on the Australian Website, on billboards, in fashion magazines and other printed publications and through social media namely Facebook (25 million followers), Instagram (55 million followers), TikTok (14.9 million followers) and X (9.7 million followers).
6. Kainane provides the results of searches of the Australian trade mark register in class 21 for trade mark applications and registrations containing the letters L and V or that adopt a three syllable form. I note that these searches returned 22 results.
7. Kainane annexes extracts from the Bunnings and Spotlight websites in 2025 showing the range of price of the Opponent's goods being between $12 and $92.

1. Carter states that the glassware industry segments the market by material and application, exhibiting:
   • an extract from a report by Fortune Business Insights entitled 'Australia Market Analysis, Insights and Forecast, 2019-2032';
   • extracts from Fortune Business Insights website showing the segmentation of the global glassware and ceramic tableware markets;
   • extracts from the IBISWorld website showing the glass and glass product manufacturing, and the ceramic product manufacturing market segmentation in Australia; and
   • extracts from a website of the Australian Taxation Office showing the different classifications for glassware and ceramic manufacturing, wholesaling and retailing industries.

Section 44**

1. Section 44 relevantly provides (some notes omitted):

(1) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant's trade mark) in respect of goods (applicant's goods) must be rejected if:

(a) the applicant's trade mark is substantially identical with, or deceptively similar to:

(i) a trade mark registered by another person in respect of similar goods or closely related services; or

(ii) a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and

(b) the priority date for the registration of the applicant's trade mark in respect of the applicant's goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

Note 1: For deceptively similar see section 10.

Note 2: For similar goods see subsection 14(1).

(2) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant's trade mark) in respect of services (applicant's services) must be rejected if:

(a) it is substantially identical with, or deceptively similar to:

(i) a trade mark registered by another person in respect of similar services or closely related goods; or

(ii) a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and

(b) the priority date for the registration of the applicant's trade mark in respect of the applicant's services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.

Note 1: For deceptively similar see section 10.

Note 2: For similar services see subsection 14(2).

1. As a starting point, to successfully oppose the Applications pursuant to s 44, the Opponent must establish each of the following requirements:
   • one or more of the LAV Marks has a priority date which is earlier than the Relevant Date and is held in a name other than that of the Holder ('the first requirement');
   • the Trade Marks are substantially identical with or deceptively similar to one or more of the LAV Marks ('the second requirement'); and
   • the LV Goods are similar to the Opponent's goods or closely related to the Opponent's services ('the third requirement').
2. I am satisfied that the LAV Marks have earlier priority dates than the Relevant Date and that they are in a name other than the Holder. Therefore, the first requirement is satisfied.
3. The next consideration is whether the Trade Marks are substantially identical with, or deceptively similar to, the LAV Marks. The Opponent does not press that the marks are substantially identical so I need only consider deceptive similarity. To this end, it is convenient to confine my discussion to a comparison of the LV Device and the LAV Marks, the rationale being that if I find that the LV Device is not deceptively similar to the LAV Marks, logic dictates that the same conclusion will apply to a comparison of the LV & Devices and the LAV Marks, given that the LV & Devices have additional points of dissimilarity.
   1. Section 10 provides a definition of deceptively similar being that 'a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion'.
   2. Justice Windeyer outlined the following approach for the assessment of deceptive similarity in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd:

On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's [mark].[8]

1. The High Court in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd[9] ('Self Care') conveniently stated the relevant principles, which were summarised in The Agency Group Australia Limited v H.A.S. Real Estate Pty Ltd[10] as follows:

(a) the resemblance between the two marks must be the cause of the likely deception or confusion;[11]

(b) in the trade mark comparison, the marks must be judged as a whole taking into account both their look and their sound;[12]

(c) the marks should not be compared side by side;[13]

(d) the effect of spoken description must be considered; if a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods (or services), then similarities both of sound and of meaning may play an important part;[14]

(e) the focus is upon the effect or impression produced on the mind of potential customers of the goods (or services) in relation to which the two marks are used and in the case of the registered mark, allowing for 'imperfect recollection';[15]

(f) the notional buyer is a person with no knowledge about any actual use of the registered mark, the actual business of the owner of the registered mark, the goods the owner produces, any acquired distinctiveness from the use of the marks prior to filing, or any reputation associated with the registered mark;[16]

(g) the correct approach is to compare the impression (allowing for imperfect recollection) that the notional buyer would have of the registered mark (as notionally used on all of the goods or services covered by the registration), with the impression that the notional buyer would have of notional and normal fair use of the opposed mark;[17]

(h) 'deceived' implies the creation of an incorrect belief or mental impression; 'causing confusion' may merely involve 'perplexing or mixing up the minds' of potential customers; [18]

(i) the usual manner in which ordinary people behave must be the test of what confusion or deception may be expected, having regard to the character of the customers who would be likely to buy the goods in issue;[19]

(j) it is not necessary to establish actual probability of deception or confusion, but a mere possibility of confusion is not enough. There must a real, tangible danger of deception or confusion occurring. It is enough if the notional buyer would entertain a reasonable doubt as to whether, due to the resemblance between the marks, the two products come from the same source. Put another way, there must be 'a real likelihood that some people will wonder or be left in doubt about whether the two sets of products ... come from the same source';[20]

(k) evidence of actual confusion is of great weight, but not essential, and lack of such evidence may also be relevant;[21] and

(l) any intention to deceive or cause confusion may be a relevant consideration but is not required.[22]

1. Furthermore, the High Court in Self Care[23] noted the following:[24]

In considering the likelihood of confusion or deception, "the court is not looking to the totality of the conduct of the defendant in the same way as in a passing off suit"[25]. In addition to the degree of similarity between the marks, the assessment takes account of the effect of that similarity considered in relation to the alleged infringer's actual use of the mark[26], as well as the circumstances of the goods, the character of the likely customers, and the market covered by the monopoly attached to the registered trade mark[27]. Consideration of the context of those surrounding circumstances does not "open the door" for examination of the actual use of the registered mark, or, as will be explained, any consideration of the reputation associated with the mark.[28]

1. The commonality of idea is part of the process of determining if the marks look or sound alike. In Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd, the High Court observed:

[t]he fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive.[29]

1. In the case of a composite mark, all the elements of the mark must be considered in their context including the size, prominence, and the stylisation of words and devices, and the relationship of all these elements to each other.[30] The Full Court in The Agency Group Australia Ltd v H.A.S Real Estate Pty Ltd noted:

In undertaking his analysis, the primary judge stressed the importance of considering "the whole of the marks and all of their elements"...

In applying this principle in the present case, the primary judge stressed that the AGENCY Mark is not a word mark but a composite mark in which the stylised "A" cannot be ignored. It is an element of the composite mark which the ordinary consumer would not fail to recall. His Honour noted that this presentation of the letter "A" represents a stylised roof or house device.

His Honour also said that it was relevant to take into account that the words "THE AGENCY" on their own have a strongly descriptive element in referring to the nature of the real estate business. His Honour said that the ordinary consumer would expect the word "AGENCY" to be commonly used in the names of real estate businesses in Australia.[31]

First, understanding the scope of the registered mark, as a sign, is fundamental to the infringement question. Here, the AGENCY Mark is not simply the words "THE AGENCY". Rather, it is those words represented in a particular stylised form.

Therefore, the exclusive right to use the AGENCY Mark in respect of the designated services that is conferred on the second appellant, as owner of the mark, by s 20 of the Act, is not the right to use the words "THE AGENCY"; it is the exclusive right to use those words represented in the particular stylised form of the mark as registered. To ignore the significance of the particular stylised form of the AGENCY Mark would be to extend its scope well beyond the monopoly that has been granted to the second appellant by registration of the mark under the Act: Australian Meat Group at [78]. This is an important matter to bear in mind, which was recognised by the primary judge.[32]

1. In light of the authorities, I must decide whether there is a real, tangible danger of deception or confusion by reason of the use of the Trade Marks, having regard to the imperfect recollection of the notional consumer of each of the LAV Marks. I must compare the marks as wholes, visually and aurally considering all their elements with regard to essential or distinguishing features, in the context of a large variety of household, bathroom and kitchen goods. Of importance is the effect and meaning of the trade marks, particularly their effect or impression produced on the mind of ordinary consumers.
2. The Opponent submits that the LV Device is deceptively similar to the LAV Marks as:
   • the dominant and distinctive visual features of the LV Device are the letters L and V. While the letters L and V are presented in an overlapping style, this style is minimal and consumers will be left with the dominant visual impression of L and V. Consumers are also likely to fail to recall the stylisation due to imperfect recollection and will remember and refer to the brand in market as being L V or L and V;
   • the LAV Marks start with an L and end with a V and these letters are also the dominant and distinctive visual features of the LAV Marks;
   • while the LAV Marks contain the letter A, this is the middle element, rendering it of less importance visually;
   • the LAV Marks and LV Device are in relatively simple fonts and the font used in the LV Device is visually similar to that of the 091 Mark; and
   • the LV Device would be referred to verbally as EL-VEE or EL-AND-VEE. The LAV Marks are not a recognised English word and will be seen by consumers an abbreviation or acronym and pronounce them EL-AHH-VEE. Even if consumers remember the LAV Marks as a made-up word, they would pronounce them LAEV with a focus on the initial L and terminal V sounds.
3. The Holder in answer submits:
   • the LAV Marks comprise 3 letters which are visually different to the LV Device which comprises 2 letters superimposed over one another;
   • the LAV Marks are phonetically different as they are likely to be pronounced as a single word and not as an acronym pronounced EL-AHH-VEE;
   • the word LAV is a colloquial term for the bathroom or lavatory which is likely to be recognised as such by a number of Australian consumers.[33]
   • the LV Device has no meaning and will be pronounced as 2 letters either L and V or V and L and in any event the LV Device is unlikely to be referred to verbally due to its stylisation;
   • the LV Device would not be referred to verbally as EL-AND-VEE and if it is referred to verbally, as the letters L and V are superimposed over one another, they can be pronounced as EL-VEE or VEE-EL;
   • commonality of letters is not sufficient; and
   • one cannot ignore the letter A as the marks must be compared as a whole.
4. I am not satisfied that the LV Device is deceptively similar to the LAV Marks. When considered as a whole, I agree with the Holder that LAV Marks are visually, aurally and phonetically different. In my view the LAV Marks would be pronounced as the word LAV, even by consumers unfamiliar with its meaning. Where three letters form a pronounceable combination, they are more likely to be read and recalled as a word rather than as individual letters. The presence of the letter 'A' is therefore significant and cannot be ignored or discounted. I also disagree with the Opponent's submission that consumers would pronounce the LAV Marks as 'LAEV'. The more likely and obvious pronunciation is how the mark is spelled, namely 'LAV', but even if they are pronounced as 'LAEV', I believe the respective marks are still distinguishable.
5. While I accept that the dominant and distinctive visual features of the LV Device are the letters L and V, I do not accept the Opponent's submission that the overlapping design is minimal, the font is relatively simple or that consumers would be unlikely to recall the stylisation. Nor do I accept that the font of the LV Device resembles that of the 091 Mark. The stylisation of the LV Device is a distinctive feature which consumers are unlikely to overlook. I also consider that consumers are as likely to remember the LV Device as the letters 'V L' as they are 'L V' and that the LV Device is likely to give the impression of a monogram, even if the order of letters may be unknown, whereas the LAV Marks will not
6. It is also relevant to consider the consumers of the Holder's Goods and the goods claimed by the LAV Marks. Many of these goods would be encountered and selected on the basis of visual impression either in store or online, in circumstances where consumers would have the opportunity to observe and distinguish the respective marks.
7. The fact remains that the comparison between the marks is one based on the impression (allowing for imperfect recollection) that the notional buyer would have of the LAV Marks (as notionally used on all of the goods or services covered by the registrations), with the impression that the notional buyer would have of the notional and normal fair use of the LV Device. The Opponent has focussed on dissecting the individual elements of the respective marks and identifying shared features, rather than assessing each mark as a whole and considering the overall impression created by any similarities.
8. After consideration of the differences in the respective marks, taken together, and even allowing for imperfect recollection, as a matter of impression the LV Device generates an overall visual, aural and conceptual impression of difference. It is highly unlikely that a consumer would confuse the LAV Marks with the LV Device and the risk of an ordinary member of the public being confused about whether the LV Goods under the LV Device have an association with the LAV Marks is remote. For that reason, the LV Device is not likely to deceive or cause confusion and, therefore, is not deceptively similar to the LAV Marks.
9. As the LV Device is not deceptively similar to the LAV Marks, it follows that the LV & Devices mark is likewise not deceptively similar to the LAV Marks. Accordingly, the s 44 ground of opposition is unsuccessful.

Trade mark similar to trade mark that has acquired a reputation in Australia

The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

(a) another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and

(b) because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.

1. To establish this ground, the Opponent must demonstrate the existence of another trade mark(s) which had acquired a reputation in Australia before the Relevant Date. The Opponent must then establish that because of this reputation, use of the Trade Marks would be likely to deceive or cause confusion.
2. The SGP states that the LAV Marks have been used continuously in Australia by the Opponent since at least 2012 in relation to glassware and as a result of this use, the LAV Marks have acquired a reputation.

1. The meaning of reputation was considered by Kenny J in McCormick & Co Inc v McCormick ('McCormick') as referring to 'the recognition of the [trade mark] by the public generally'.[34]
2. Further, Kenny J stated in McCormick that:

In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[35]

1. The reputation in the other trade mark must be amongst a 'significant or substantial' number of Australian consumers but this is tempered by the nature of the relevant market.[36] Here the relevant market is glassware which is likely to include most Australian households. Meanwhile, the existence and extent of reputation must be established as a matter of fact by the Opponent.[37]
2. In Rodney Jane Racing Pty Ltd v Monster Energy Company ('Rodney'), it was observed that:

The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally.[38]

1. While the Opponent bases the s 60 ground on the LAV Marks, notably, each is considered a separate trade mark for the purposes of s 60. However, as the LAV Marks are clearly substantially identical to each other, use of any one of them constitutes use of the others.[39]
2. The Opponent submits that the evidence shows the Opponent had acquired a reputation at the Relevant Date in the LAV Marks amongst a significant or substantial number of persons. The reputation is claimed to have been continuous since 2012 with large volumes of glassware being glasses, mugs, carafes, pitchers, jugs and bowls ('Used Goods') being sold via numerous wholesalers and retailers across Australia. The Opponent has provided confidential sales information for the Opponent's glassware sold in Australia from 2012 to 2024 together with 20 invoices dated before the Relevant Date.
3. The Opponent also submits that the evidence filed by the Holder explains why there has been no actual confusion in the marketplace. The fashion items for which the Holder is likely to be known do not fall in the same market as that in which the Opponent operates and the Holder has not shown use of the Trade Marks for glassware or ceramic items. The Opponent concludes that notwithstanding any use or reputation the Holder may have in the Australian market for its luggage and fashion items, there is nothing to indicate that the Holder is known for manufacturing and marketing glassware under the Trade Marks. It cannot be assumed that any such reputation would transfer to glassware products.
4. The Holder submits that the evidence regarding the extent of promotion and use in Australia of each of the LAV Marks is limited and therefore the Opponent has not established that the Opponent has a reputation in any of the LAV Marks in Australia. In particular:
   • there is only evidence that Rinkit has been a distributor since 2019 and the number of Rinkit's unit sales have only been provided for 2024, after the Relevant Date. The number of Rinkit's unit sales have not been provided for any other years nor are the number or value of sales from any of the other distributors or retailers;
   • the website printouts dated before the Relevant Date of the Weatherton website only show 11 products for sale under the LAV Marks and the number of visits to the website are not provided;
   • there are a number of printouts of websites of distributors and retailers which are undated or dated after the Relevant Date;
   • distributor and retailer invoices dated before the Relevant Date are minimal;
   • there is no evidence at all of any use of the LAV Marks before 2019;
   • the evidence only shows use of the LAV Marks on a limited range of glassware namely drinking glasses, bowls, carafes/jugs which are low priced items so a greater amount of use, promotion and extent of sales is required to show reputation; and
   • evidence of the Holder's reputation in the Trade Mark is relevant to the assessment of s 60.
5. Both the Opponent and the Holder have raised the Holder's reputation in the Trade Marks under the s 60 ground. In my view, the Holder's reputation is not here relevant to s 60. The language of s 60 asks simply whether the use of the opposed trade mark is likely to deceive or cause confusion because of the reputation in the prior mark.
6. While the question of reputation was not in issue in Optical 88 Ltd v Optical 88 Pty Ltd (No 2),[40] Yates J stated:

... I say this because s 60 does not operate only where an exclusive reputation is demonstrated. Section 60, arguably, will operate when there are conflicting reputations. It is sufficient for s 60 purposes that, before the priority date for the opposed application, another mark has a reputation and, because of that reputation, use of the opposed mark would be likely to deceive or cause confusion. It is beside the point that, at the time of making the opposed application, it can be shown that the opposed mark has its own reputation.

1. Further although the matter is currently before the High Court, in Taylor v Killer Queen, LLC (No 5),[41] Markovich J stated:

But the reputation in the Applicant's Mark is not a relevant inquiry for s 60 of the TM Act. Section 60 calls for a comparison between the reputation of the prior mark derived from its actual use and a notional and normal fair use of the opposed mark.

1. I agree with some of the Holder's submissions concerning deficiencies in the Opponent's reputational evidence. Undated evidence or evidence dated after the Relevant Date does little to assist me in determining the Opponent's reputation in the LAV Marks at the Relevant Date. I also agree with the Holder that the Opponent's evidence only shows use of the LAV Marks on a limited range of glass products, although I consider that such use also includes glass mugs and pitchers.[42]
2. While the Opponent has provided confidential wholesale figures for the Opponent's glassware under the LAV Marks in Australia from 2012 to 2024 which are significant, the Opponent has been unable to provide any evidence of use of the LAV Marks between 2012 and 2018 other than an unsupported assertion of the name of two previous distributors in Australia. Further these wholesale figures represent sales to Australian distributors and retailers. Other than providing an approximate figure of Rinkit's retail units sold in 2024, after the Relevant Date, there is nothing to show the extent of retail sales to Australian consumers and therefore nothing to show that a significant or substantial number of Australian consumers were aware of the LAV Marks at the Relevant Date.
3. The website extracts from Rinkit, Weatherdon and Spotlight dated before the Relevant Date do not demonstrate targeted promotion of the Opponent's glassware. These websites offer a wide range of products beyond glassware under many brands, and the Opponent has provided no metrics indicating how many Australian consumers visited these sites or engaged specifically with products bearing the LAV Marks.
4. While the Opponent has provided wholesale figures for the Used Goods there are no annual retail sales figures provided which pertain to Australian consumers before the Relevant Date, nor has the Opponent provided any indication of the Opponent's market share in the glassware industry, any advertising and promotional expenditure figures, or any website metrics, which would all assist me in determining the degree of market penetration of the LAV Marks by the Relevant Date.
5. As observed by O'Bryan J in Rodney,[43] the reputation of a trade mark has quantitative and qualitative dimensions. It is also the evidence relating to the qualitative dimension where the Opponent's evidence is lacking in detail. There is little evidence which concerns the image and values projected by the LAV Marks, and therefore the esteem or favour in which the LAV Marks are held by the public generally. The nine Amazon reviews over 2 years which do not mention the LAV Marks do not show the image and values projected by the LAV Marks.
6. In my assessment of the evidence, I am not satisfied that the Opponent had a reputation in the LAV Marks at the Relevant Date that falls within the requirements of s 60(a).
7. Further even if the Opponent's reputation in the LAV Marks falls within the requirements of s 60(a), the Opponent has also not demonstrated that because of the Opponent's reputation, the use of the Trade Marks would be likely to deceive or cause confusion. For the same reasons detailed above under the s 44 ground of opposition, the LAV Marks and the Trade Marks do not share a significant degree of similarity. I do not believe that any reputation the Opponent holds in its LAV Marks would be sufficient to overcome the differences in the trade marks such that use of the LV Marks would be likely to deceive or cause confusion.
8. The Opponent has accordingly not established its ground of opposition under s 60.

1. I find that the Opponent has failed to establish any of the grounds of opposition it nominated in the SGPs. Accordingly, the Trade Marks may proceed to registration not less than one month from the date of this decision.
2. If the Registrar is served with a notice of appeal, I direct that registration of the Trade Marks shall not occur until either the appeal is withdrawn or discontinued. Otherwise, the disposition of the Applications should be in accordance with the Court's order or direction.

1. The Opponent and the Holder have both sought costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. Accordingly, in respect of the opposition to trade mark 2463440 I award costs against the Opponent in the relevant amounts under Schedule 8 of the Regulations. For the opposition to trade mark 2465166 I award reduced costs against the Opponent in the same manner as Hume Industries (Malaysia) Berhad v James Hardie & Coy Pty Ltd.[44]

Class 3: Cosmetics; cosmetic creams; cosmetic products for skin care; cotton buds for cosmetic use; cosmetic kits comprised primarily of mascara, lipstick, eyebrow pencil, make-up, foundation and lip gloss; beauty masks; gel eye patches for cosmetic use; oils for cosmetic use; lotions for cosmetic use; cleansing milk for toilet purposes; toiletry preparations; after-shave lotions; shaving products; cosmetic skin-tanning preparations; sunscreen preparations; deodorants [perfumery]; dentifrices; soaps; bath salts not for medical use; bath preparations, not for medical use; cosmetic preparations for baths; shampoos; hair conditioners; hair lotions; hair sprays; decorative transfers for cosmetic use; temporary tattoos for the body and nails for cosmetic use; nail polish; nail polish base coats; nail polish fixative; nail care products; nail polish removers; nail art stickers; false nails; make-up products; pencils for cosmetic use; make-up bases; sprays to set make-up; make-up powder; make-up products for skin tone; make-up foundations; concealers (under-eye enhancers); blusher (rouge); balms other than for medical use; lip care products; lip balms; lip liner pencils; lip glosses; lip gloss; lipstick; lipstick cases; blush; eye shadows; eye shadows ("fards à paupières"); eye liners; eye pencils; eyelid pencils; blusher pencils; cosmetics for eyelashes; mascara; false eyelashes; eyebrow cosmetics; eyebrow kits; eyebrow pencils; mascaras for eyebrows; filled powder compacts; cartridges and refills for cosmetics, makeup; make-up removing products; micellar water; wipes impregnated with make-up removing preparations; cotton impregnated with make-up removing preparations; eye make-up remover; cleaning product for cosmetic brushes; perfumery products; perfumes; eau de Cologne; eaux de toilette; air fragrance reed diffusers; air fragrances; incense; products for perfuming linen; shoe polish; leather preservatives [polishes]; creams for leather; cotton wool for cosmetic use; cotton disks for cosmetic use; cosmetics for animals; soaps for animals; shampoos for animals; hair conditioners for animals; dentifrices for animals; perfumes for animals; perfumery products for animals; deodorants for animals; breath freshening products for animals; grooming products for animals; bath salts and bath preparations for animals; cleaning products for animal environments (habitats); bleaching preparations and other substances for laundry use; cleaning, polishing, degreasing and abrasive preparations; sunscreen products for animals; wipes impregnated with cosmetic lotions for animals; varnish for animal nails, claws or hooves; essential oils for animals; makeup products for animals; sanitary preparations for animals (non-medicated).

Class 7: Looms; dyeing machines; leather-working machines; spinning frames; knitting machines; sewing machines; hemming machines; darning machines; lace making machines; die-stamping machines; punching machines; sealing machines for industrial use; packaging machines; labelers; printing plates; presses [machines for industrial use]; printing rollers for machines; bookbinding apparatus and machines for industrial use; printing machines; 3D printers; electric hair clippers for animals; vacuum cleaners; vacuum cleaner attachments for disseminating perfumes and disinfectants; washing apparatus; cleaning appliances utilizing steam; electric scissors; lawnmowers; food or beverage vending machines for animals; electric kitchen grinders; electric pepper mills; electric coffee grinders; electric can openers; electric food processors; hand-held tools, other than hand-operated; electric machines and apparatus for carpet shampooing.

Class 8: Silver plate [knives, forks and spoons]; table cutlery [cutlery, forks and spoons]; table spoons, forks and knives for babies; cutlery; knives; penknives; oyster openers; non-electric can openers; hand-operated capsule cutters for wine bottles; razor blades; razor cases; shaving cases; electric or non-electric razors; scissors; manicure sets; electric manicure sets; pedicure sets; electric or non-electric nail clippers; nail nippers; hair-removing tweezers; eyelash curlers; lasts [shoemakers' hand tools]; tool belts [holders]; punch pliers [hand tools]; punches [hand tools]; sand trap rakes; side arms, other than firearms; hair clippers for cutting animal hair; apparatus for tattooing; electric or non-electric depilation apparatus; ear-piercing apparatus; nail files; manual food processors.

Class 9: Eyewear; sunglasses; spectacles [optics]; spectacle frames; spectacle lenses; spectacle chains; spectacle cords; spectacle cases; containers for contact lenses; sleeves for laptops; bags adapted for laptops; cases especially made for photographic apparatus and instruments; hard covers for smartphones; cases for smartphones; straps for mobile telephones; protective films adapted for smartphones; handles, rings and stands adapted for smartphones and tablet computers; selfie sticks [hand-held monopods]; protective face shields; protective masks; protective chin guards; protective gloves; mouse pads; binoculars; protective helmets for sports; sports whistles; directional compasses; apparatus and instruments for sound or image recording, transmission, reproduction or processing; loudspeakers; headphones; earphones; hands-free kits for telephones; smart watches; connected bracelets [measuring instruments]; downloadable computer software applications; downloadable music files; digital or analog recording and storage media; USB flash drives; smartphones; tablet computers; photographic cameras; personal stereos; portable media players; compact disc players; cassette players; record players; microphones; phonograph records; chargers for electronic apparatus; animated cartoons; downloadable game software; downloadable electronic publications; downloadable graphic elements for mobile telephones; downloadable emoticons for mobile telephones; personal digital assistants (PDAs); electronic collars for animals; sunglasses for pets; smart rings or bracelets for animals; audio and video devices for monitoring animals; smart glasses; whistles for calling animals.

Class 12: Bikes; carts; shopping carts; baskets adapted for bicycles; electric bikes; tricycles; delivery tricycles; scooters [vehicles]; motorcycles; motor scooters; side cars; cars; electric vehicles; golf carts; snowmobiles; caravans; trailers [vehicles]; vans; trucks; motor buses; tractors; locomotives; canoes; boats; oars for boats; yachts; helicopters; airplanes; parachutes; hot-air balloons; dirigible balloons (airships); aircraft; camera drones; civilian drones; wheelbarrows; prams; strollers; hoods for strollers; covers for strollers; bags designed for strollers; bicycle frames; bicycle handlebars; bicycle saddles; bicycle bells; bicycle pedals; bicycle kickstands; mudguards; dress guards for bicycles; rims for bicycle wheels; saddlebags adapted for bicycles; panniers adapted for bicycles; saddle covers for bicycles; motorcycle frames; motorcycle handlebars; motorcycle kickstands; panniers adapted for motorcycles; saddle covers for motorcycles; vehicle bodies; steering wheels for vehicles; rearview mirrors; hub caps; vehicle wheel rims; windshield wipers; air bags [safety devices for automobiles]; cigar lighters for automobiles; cup holders for vehicles; sun-blinds for automobiles; seat covers for vehicles; covers for vehicle steering wheels; spare wheel covers; vehicle covers [shaped]; hoods for vehicles; luggage carriers for vehicles; anti-theft devices for vehicles; delivery drones; pet strollers; stroller hoods for pets; pet stroller covers; bags adapted for pet strollers; panniers adapted for bicycles for transporting pets; panniers adapted for motorcycles for transporting pets; saddlebags adapted for bicycles for transporting pets; saddlebags adapted for motorcycles for transporting pets; horse trailers; horns for vehicles.

Class 14: Jewelry and jewelry articles; rings [jewelry]; earrings; cuff links; bracelets [jewelry]; bracelets of embroidered textile materials [jewelry]; jewelry charms; brooches [jewelry]; chains [jewelry]; necklaces [jewelry]; pendants [jewelry]; medallions [jewelry]; amulets [jewelry]; presentation cases for jewelry; pins [jewelry]; tie pins; tie clips; jewelry boxes; boxes of precious metals and their alloys; medals; pearls [jewelry]; semi-precious stones; precious stones; diamonds; jewelry for bags; charms for key rings; key rings [split rings with charms or trinkets]; statues of precious metals and their alloys; works of art of precious metals and their alloys; figurines and statuettes of precious metal; timepieces; watches; wristwatches; watch bands; watch cases; dials [timepieces]; watch chains; chronometers; presentation cases for watches; clocks; alarm clocks; chronometric instruments; movements for timepieces; jewelry for pets; articles of fine jewelry for pets.

Class 16: Stationery; writing or drawing books; notebooks; indexes; coloring books; paper sheets [stationery]; pads [stationery]; writing paper; envelopes [stationery]; labels of paper or cardboard; shields [paper seals]; stickers [stationery]; adhesives [glues] for stationery or household purposes; transfers (decalcomanias); cards; greeting cards; postcards; trading cards other than for games; announcement cards [stationery]; calendars; blueprints; books; albums; periodicals; magazines [periodicals]; catalogs; pamphlets; flyers; printed publications; posters; pictures; photographs [printed]; photograph stands; framed or unframed paintings [pictures]; writing materials; writing cases [stationery]; pencils; pencil sharpeners, electric or non-electric; rubber erasers; pens; balls for ball-point pens; ink; inkwells; nibs; pen cases; inking pads; stamps [seals]; paintbrushes; paint boxes [for use in school]; boxes for pens; cabinets for stationery [office requisites]; office requisites except furniture; desk mats; paper knives [letter openers]; paperweights; flower-pot covers of paper; letter trays; bookmarkers; page holders; bookends; figurines of papier mâché; terrestrial globes; passport holders; holders for checkbooks; money clips; boxes of paper or cardboard; cardboard hat boxes; bags [envelopes, pouches] of paper or plastics, for packaging; wrapping paper; packing [cushioning, stuffing] materials of paper or cardboard; drawer liners of paper, perfumed or not; bunting of paper; table linen of paper; toilet paper; bags made of paper or plastic for disposing of pet waste.

Class 18: Bags; backpacks; handbags; traveling bags; suitcases [carrying cases]; attaché cases; wheeled shopping bags; net bags for shopping; trunks [luggage]; suitcases; traveling trunks; vanity cases, not fitted; travel sets [leatherware]; garment bags and shoe bags for travel; hat boxes of leather; boxes of leather or leatherboard; wallets; purses (coin purses); card cases [wallets]; business card cases; key cases; address tags for luggage; leather labels; leather laces; shoulder belts of leather or imitation leather; straps of leather or imitation leather; girths of leather; leather and imitations of leather; bags for transporting animals; collars, leads and harnesses for animals; clothing for pets; umbrellas; parasols and sunshades; whips; walking sticks; saddlery articles; furniture coverings of leather; carrying bags for pets; horse blankets; horse halter; pads, covers and saddle cloths for horses.

Class 20: Furniture; wardrobes; chests of drawers; sideboards; plate racks; showcases [furniture]; bookcases [furniture]; shelving units; filing cabinets; tables; desks; office furniture; console tables [furniture]; tea carts; trolleys [furniture]; standing desks; trestles [furniture]; table tops; settees; sofas; divans; armchairs; chaises longues; chairs [seats]; stools; footstools; benches [furniture]; beds; bedding except linen; bed bases; mattresses; inflatable furniture; sleeping mats; screens [furniture]; indoor blinds [furniture]; towel stands [furniture]; umbrella stands; magazine racks; book rests; display stands; jewelry organizer displays; flower-pot pedestals; flower-stands [furniture]; coat stands; Clothes hooks, not of metal; clothes hangers; garment covers [storage]; bag hangers not of metal; padlocks, other than electronic, not of metal; split rings, not of metal, for keys; keys made of plastic materials; identity plates, not of metal; labels of plastic materials; non-electric fans for personal use; cushions; pillows; pet cushions; display boards; signboards of wood or plastic materials; picture frames; mirrors [looking glasses]; hand-held mirrors [toilet mirrors]; trays, not of metal; lap desks; baskets, not of metal; non-metallic empty tool boxes; boxes of wood or plastic materials; chests not of metal; toy chests; bassinets; Moses baskets; high chairs for children; cots for babies; playpens for babies; mats for infant playpens; baby changing mats; infant walkers; mobiles [decoration]; wind chimes (decoration); works of art of wood, wax, plaster or plastic; figurines made of wood, wax, plaster or plastic; statues of wood, wax, plaster or plastic materials; letter boxes, not of metal or masonry; coffins; beds and kennels for pets; playing posts for cats; birdhouses; nesting boxes for household pets; playhouses for pets; furniture for household pets.

Class 21: Tableware; table plates; drinking vessels; drinking glasses; mugs; cups; saucers; tea services; teapots; sugar bowls; tea caddies; coffee services; non-electric coffeepots; non-electric kettles; drinking straws; cocktail stirrers; ice-cube tongs; mixers for beverages [shakers]; drinking bottles; pocket flasks; bottles; decanters; corkscrews, electric and non-electric; bottle openers, electric and non-electric; wine aerators; wine pourers; liqueur sets; trays for household use; place mats, neither made of paper nor of textile materials; fitted picnic baskets, including dishes; vases; candlesticks; candle holders (candlesticks); perfume burners; toilet cases; shaving brushes; shaving brush holders; combs; shoe brushes; shoe trees; shoe horns; pots; flower pots; flower-pot covers, not of paper; window-boxes; watering cans; coin banks (piggy banks); art objects made of porcelain, ceramic, earthenware, terracotta or glass; figurines of porcelain, ceramic, earthenware, terracotta or glass; porcelain ware; bowls; egg cups; salt cellars; pepper pots; cake molds; candle extinguishers; electric and non-electric aromatic oil diffusers, other than reed diffusers; perfume vaporizers; toilet utensils, namely: cosmetic utensils, sanitary and beauty care utensils, namely, makeup removing apparatus, applicators for cosmetics; brushes; toothbrushes; eyelash brushes; eyebrow brushes; cosmetic utensils; make-up brushes; make-up sponges; powder puffs; empty powder compacts; waste paper baskets; decorative glass bowls; statues of porcelain, ceramic, earthenware, terracotta or glass; litter boxes for pets; cages for pets; feeding bowls for pets; automatic dispensing bowls for pets; animal grooming gloves; combs for animals; mangers for animals; toilet utensils for animals, namely: cosmetic utensils, sanitary and beauty care utensils for animals, namely, toothbrushes for animals; dustbins for household use; brooms; non-electric fruit presses for household use; buckets; brushes for pets; water fountains for pets; scoops for disposing of pet waste for household use.

Class 24: Banners of textile materials or plastic materials; bed valances; table runners not of paper; cotton fabrics; bed blankets; picnic blankets; lap robes; bed covers; flags made of textile or plastic materials; bed sheets; eiderdowns [down coverlets]; labels of textile materials; upholstery fabrics; woolen fabrics; pennants of textile materials or plastic materials; washing mitts; baby bunting; large bivouac bags as sleeping bag protectors; pillow shams; loose covers for furniture; fitted toilet lid covers of fabric; covers for cushions; jersey [fabric]; bath linen with the exception of clothing; bed linen; household linen; table linen not of paper; plastic material [substitute for fabrics]; handkerchiefs of textile materials; mosquito nets; tablecloths not of paper; baby bunting [snuggle suits]; shower curtains of textile or plastic; curtains of textile or plastic materials; sleeping bags; table napkins of textile; towels of textile materials; place mats of textile materials; pillowcases; wall hangings of textile materials; textile materials; fabrics for changing babies; linen cloths; silk fabrics; fabrics; elastic fabrics; reusable wax-coated fabrics for packaging food; cloth; oilcloths for use as tablecloths; dish towels; cot bumpers [bed linen]; knitted fabrics; blanket for pets.

Cosmetics; cosmetic creams; cosmetic products for skin care; cotton buds for cosmetic use; cosmetic kits comprised primarily of mascara, lipstick, eyebrow pencil, make-up, foundation and lip gloss; beauty masks; gel eye patches for cosmetic use; oils for cosmetic use; lotions for cosmetic use; cleansing milk for toilet purposes; toiletry preparations; after-shave lotions; shaving products; cosmetic skin-tanning preparations; sunscreen preparations; deodorants [perfumery]; dentifrices; soaps; bath salts not for medical use; bath preparations, not for medical use; cosmetic preparations for baths; shampoos; hair conditioners; hair lotions; hair sprays; decorative transfers for cosmetic use; temporary tattoos for the body and nails for cosmetic use; nail polish; nail polish base coats; nail polish fixative; nail care products; nail polish removers; nail art stickers; false nails; make-up products; pencils for cosmetic use; make-up bases; sprays to set make-up; make-up powder; make-up products for skin tone; make-up foundations; concealers (under-eye enhancers); blusher (rouge); balms other than for medical use; lip care products; lip balms; lip liner pencils; lip glosses; lip gloss; lipstick; lipstick cases; blush; eye shadows; eye shadows ("fards à paupières"); eye liners; eye pencils; eyelid pencils; blusher pencils; cosmetics for eyelashes; mascara; false eyelashes; eyebrow cosmetics; eyebrow kits; eyebrow pencils; mascaras for eyebrows; filled powder compacts; cartridges and refills for cosmetics, makeup; make-up removing products; micellar water; wipes impregnated with make-up removing preparations; cotton impregnated with make-up removing preparations; eye make-up remover; cleaning product for cosmetic brushes; perfumery products; perfumes; eau de Cologne; eaux de toilette; air fragrance reed diffusers; air fragrances; incense; products for perfuming linen; shoe polish; leather preservatives [polishes]; creams for leather; cotton wool for cosmetic use; cotton disks for cosmetic use; cosmetics for animals; soaps for animals; shampoos for animals; hair conditioners for animals; dentifrices for animals; perfumes for animals; perfumery products for animals; deodorants for animals; breath freshening products for animals; grooming products for animals; bath salts and bath preparations for animals; cleaning products for animal environments (habitats); bleaching preparations and other substances for laundry use; cleaning, polishing, degreasing and abrasive preparations; sunscreen products for animals; wipes impregnated with cosmetic lotions for animals; varnish for animal nails, claws or hooves; essential oils for animals; makeup products for animals; sanitary preparations for animals (non-medicated).

Looms; dyeing machines; leather-working machines; spinning frames; knitting machines; sewing machines; hemming machines; darning machines; lace making machines; die-stamping machines; punching machines; sealing machines for industrial use; packaging machines; labelers; printing plates; presses [machines for industrial use]; printing rollers for machines; bookbinding apparatus and machines for industrial use; printing machines; 3D printers; electric hair clippers for animals; vacuum cleaners; vacuum cleaner attachments for disseminating perfumes and disinfectants; washing apparatus; cleaning appliances utilizing steam; electric scissors; lawnmowers; food or beverage vending machines for animals; electric kitchen grinders; electric pepper mills; electric coffee grinders; electric can openers; electric food processors; hand-held tools, other than hand-operated; electric machines and apparatus for carpet shampooing.

Silver plate [knives, forks and spoons]; table cutlery [cutlery, forks and spoons]; table spoons, forks and knives for babies; cutlery; knives; penknives; oyster openers; non-electric can openers; hand-operated capsule cutters for wine bottles; razor blades; razor cases; shaving cases; electric or non-electric razors; scissors; manicure sets; electric manicure sets; pedicure sets; electric or non-electric nail clippers; nail nippers; hair-removing tweezers; eyelash curlers; lasts [shoemakers' hand tools]; tool belts [holders]; punch pliers [hand tools]; punches [hand tools]; sand trap rakes; side arms, other than firearms; hair clippers for cutting animal hair; apparatus for tattooing; electric or non-electric depilation apparatus; ear-piercing apparatus; nail files; manual food processors.

Eyewear; sunglasses; spectacles [optics]; spectacle frames; spectacle lenses; spectacle chains; spectacle cords; spectacle cases; containers for contact lenses; sleeves for laptops; bags adapted for laptops; cases especially made for photographic apparatus and instruments; hard covers for smartphones; cases for smartphones; straps for mobile telephones; protective films adapted for smartphones; handles, rings and stands adapted for smartphones and tablet computers; selfie sticks [hand-held monopods]; protective face shields; protective masks; protective chin guards; protective gloves; mouse pads; binoculars; protective helmets for sports; sports whistles; directional compasses; apparatus and instruments for sound or image recording, transmission, reproduction or processing; loudspeakers; headphones; earphones; hands-free kits for telephones; smart watches; connected bracelets [measuring instruments]; downloadable computer software applications; downloadable music files; digital or analog recording and storage media; USB flash drives; smartphones; tablet computers; photographic cameras; personal stereos; portable media players; compact disc players; cassette players; record players; microphones; phonograph records; chargers for electronic apparatus; animated cartoons; downloadable game software; downloadable electronic publications; downloadable graphic elements for mobile telephones; downloadable emoticons for mobile telephones; personal digital assistants (PDAs); electronic collars for animals; sunglasses for pets; smart rings or bracelets for animals; audio and video devices for monitoring animals; smart glasses; whistles for calling animals.

Bikes; carts; shopping carts; baskets adapted for bicycles; electric bikes; tricycles; delivery tricycles; scooters [vehicles]; motorcycles; motor scooters; side cars; cars; electric vehicles; golf carts; snowmobiles; caravans; trailers [vehicles]; vans; trucks; motor buses; tractors; locomotives; canoes; boats; oars for boats; yachts; helicopters; airplanes; parachutes; hot-air balloons; dirigible balloons (airships); aircraft; camera drones; civilian drones; wheelbarrows; prams; strollers; hoods for strollers; covers for strollers; bags designed for strollers; bicycle frames; bicycle handlebars; bicycle saddles; bicycle bells; bicycle pedals; bicycle kickstands; mudguards; dress guards for bicycles; rims for bicycle wheels; saddlebags adapted for bicycles; panniers adapted for bicycles; saddle covers for bicycles; motorcycle frames; motorcycle handlebars; motorcycle kickstands; panniers adapted for motorcycles; saddle covers for motorcycles; bodies for vehicles; steering wheels for vehicles; rearview mirrors; hub caps; vehicle wheel rims; windshield wipers; air bags [safety devices for automobiles]; cigar lighters for automobiles; cup holders for vehicles; sun-blinds for automobiles; seat covers for vehicles; covers for vehicle steering wheels; spare wheel covers; vehicle covers [shaped]; hoods for vehicles; luggage carriers for vehicles; anti-theft devices for vehicles; delivery drones; pet strollers; stroller hoods for pets; pet stroller covers; bags adapted for pet strollers; panniers adapted for bicycles for transporting pets; panniers adapted for motorcycles for transporting pets; saddlebags adapted for bicycles for transporting pets; saddlebags adapted for motorcycles for transporting pets; horse trailers; horns for vehicles.

Bags; backpacks; handbags; traveling bags; suitcases [carrying cases]; attaché cases; wheeled shopping bags; net bags for shopping; trunks [luggage]; suitcases; traveling trunks; vanity cases, not fitted; travel sets [leatherware]; garment bags and shoe bags for travel; hat boxes of leather; boxes of leather or leatherboard; wallets; purses (coin purses); card cases [wallets]; business card cases; key cases; address tags for luggage; leather labels; leather laces; shoulder belts of leather or imitation leather; straps of leather or imitation leather; girths of leather; leather and imitations of leather; bags for transporting animals; collars, leads and harnesses for animals; clothing for pets; umbrellas; parasols and sunshades; whips; walking sticks; saddlery articles; furniture coverings of leather; carrying bags for pets; horse blankets; horse halter; pads, covers and saddle cloths for horses.

Furniture; wardrobes; chests of drawers; sideboards; plate racks; showcases [furniture]; bookcases [furniture]; shelving units; filing cabinets; tables; desks; office furniture; console tables [furniture]; tea carts; trolleys [furniture]; standing desks; trestles [furniture]; table tops; settees; sofas; divans; armchairs; chaises longues; chairs [seats]; stools; footstools; benches [furniture]; beds; bedding except linen; bed bases; mattresses; inflatable furniture; sleeping mats; screens [furniture]; indoor blinds [furniture]; towel stands [furniture]; umbrella stands; magazine racks; book rests; display stands; jewelry organizer displays; flower-pot pedestals; flower-stands [furniture]; coat stands; Clothes hooks, not of metal; clothes hangers; garment covers [storage]; bag hangers not of metal; padlocks, other than electronic, not of metal; split rings, not of metal, for keys; keys made of plastic materials; identity plates, not of metal; labels of plastic materials; non-electric fans for personal use; cushions; pillows; pet cushions; display boards; signboards of wood or plastic materials; picture frames; mirrors [looking glasses]; hand-held mirrors [toilet mirrors]; trays, not of metal; lap desks; baskets, not of metal; non-metallic empty tool boxes; boxes of wood or plastic materials; chests not of metal; toy chests; bassinets; Moses baskets; high chairs for children; cots for babies; playpens for babies; mats for infant playpens; baby changing mats; infant walkers; mobiles [decoration]; wind chimes (decoration); works of art of wood, wax, plaster or plastic; figurines made of wood, wax, plaster or plastic; statues of wood, wax, plaster or plastic materials; letter boxes, not of metal or masonry; coffins; beds and kennels for pets; playing posts for cats; birdhouses; nesting boxes for household pets; playhouses for pets; furniture for household pets.

Tableware; table plates; drinking vessels; drinking glasses; mugs; cups; saucers; tea services; teapots; sugar bowls; tea caddies; coffee services; non-electric coffeepots; non-electric kettles; drinking straws; cocktail stirrers; ice-cube tongs; mixers for beverages [shakers]; drinking bottles; pocket flasks; bottles; decanters; corkscrews, electric and non-electric; bottle openers, electric and non-electric; wine aerators; wine pourers; liqueur sets; trays for household use; place mats, neither made of paper nor of textile materials; fitted picnic baskets, including dishes; vases; candlesticks; candle holders (candlesticks); perfume burners; toilet cases; shaving brushes; shaving brush holders; combs; shoe brushes; shoe trees; shoe horns; pots; flower pots; flower-pot covers, not of paper; window-boxes; watering cans; coin banks (piggy banks); art objects made of porcelain, ceramic, earthenware, terracotta or glass; figurines of porcelain, ceramic, earthenware, terracotta or glass; porcelain ware; bowls; egg cups; salt cellars; pepper pots; cake molds; candle extinguishers; electric and non-electric aromatic oil diffusers, other than reed diffusers; perfume vaporizers; toilet utensils, namely: cosmetic utensils, sanitary and beauty care utensils, namely, makeup removing apparatus, applicators for cosmetics; brushes; toothbrushes; eyelash brushes; eyebrow brushes; cosmetic utensils; make-up brushes; make-up sponges; powder puffs; empty powder compacts; waste paper baskets; decorative glass bowls; statues of porcelain, ceramic, earthenware, terracotta or glass; litter boxes for pets; cages for pets; feeding bowls for pets; automatic dispensing bowls for pets; animal grooming gloves; combs for animals; mangers for animals; toilet utensils for animals, namely: cosmetic utensils, sanitary and beauty care utensils for animals, namely, toothbrushes for animals; dustbins for household use; brooms; non-electric fruit presses for household use; buckets; brushes for pets; water fountains for pets; scoops for disposing of pet waste for household use.

Balls for games; balls for games; balls for playing bowls; marbles for games; billiard balls; shuttlecocks; quoits; rackets; billiard cues; skittles; skittles [games]; gloves [accessories for games]; baseball gloves; boxing gloves; punching bags; dumbbells; barbells; jump ropes [sports articles]; targets; archery implements; darts; boomerangs; flying disks [toys]; kites; paragliders; billiard tables; table football games; tables for table tennis; swimming pools [play articles]; swimming pool air floats; trampolines; swings; slide [game]; play tents; golf bag carts; golf bags, with or without wheels; golf clubs; skateboards; roller skates; ice skates; snowshoes; covers especially designed for rackets; skis; bags especially designed for skis; snowboards; sledges [sports articles]; waterskis; surfboards; surfboard leashes; bags especially designed for surfboards; paddleboards; sailboards; flippers for swimmers; water wings; elbow guards [sports articles]; knee guards [sports articles]; shin guards [sports articles]; protective cups for sports; tricycles for infants [toys]; scooters [toys]; toy vehicles; toys; rocking horses; baby gyms; toy mobiles; rattles [playthings]; plush toys; security blankets [plush toys]; dolls; dolls' clothes; dolls' houses; figurines [toys]; puppets; masks [toys]; spinning tops [toys]; toy robots; remote-controlled toy vehicles; video game consoles; controllers for game consoles; drones [toys]; games; building games; building blocks [toys]; board games; table-top games; jigsaw puzzles; chessboards; checkerboards; playing cards; trading cards for games; counters [discs] for games; cups for dice; dice; snow globes; soap bubbles [toys]; confetti; novelties for parties; Christmas crackers [party novelties]; party balloons; Christmas trees of synthetic materials; ornaments for Christmas trees, except illumination articles and confectionery; toys for pets.

[1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth) ('Act') and each reference to a regulation is a reference to a regulation in the Trade Marks Regulations 1995 (Cth) ('Regulations').

[2] The two IRDAs will be collectively referred to in this decision as the 'Applications'.

[3] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[4] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelmann JJ).

[5] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [4] (Kitto J) ('Southern Cross').