An Australian trade mark registration is infringed if an unauthorised person uses a substantially identical or deceptively similar sign as a trade mark in relation to the goods or services for which the trade mark is registered or goods or services of the same description, or closely related services or goods.
Similarly, an application for registration of a trade mark in respect of particular goods or services must be rejected if it is substantially identical or deceptively similar to a pre-existing registered trade mark relating to similar goods or services or closely related services or goods.
To determine whether two trade marks are substantially identical, they are compared side-by-side. The importance of similarities and differences are assessed having regard to the essential features of the registered trade mark, and to the total impression of resemblance or dissimilarity that emerges.
To determine whether two trade marks are deceptively similar, the comparison is between the impression based on recollection of the registered trade mark that persons of ordinary intelligence and memory would have, and the impressions that such persons would get from the other trade mark.
To determine whether goods are “goods of the same description”, and whether services are “services of the same description”, and whether services are “closely related” to goods or goods “closely related” to services, it is necessary to consider the similarities and dissimilarities in: the nature of the goods or services, the respective purposes or uses of the goods or services, and the trade channels through which the goods or services are bought or sold.