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No longer the Apple of my i
Posted: 04/05/2010
On 21 January 2010, the Australian Trade Marks Office (“ATMO”) handed down its decision in a long running trademark dispute between US technology giant Apple Inc (“Apple”) and Wholesale Central Pty Ltd (“Wholesale Central”), a small Australian company.
Wholesale Central, incorporated in 2005, sells accessories for digital devices, music players, mobile phones, as well as selling covers and cases for Apple’s iPhone mobile phone and Macbook branded laptops.
On 24 February 2007, Wholesale Central lodged an application for trade mark registration of the mark “dopi” (iPod backwards) (“Mark”), and on 21 September 2007, Apple filed its Notice of Opposition.
In its opposition, Apple sought to argue that the Mark should not be registered as:
1. The Mark is deceptively similar to its existing marks in relation its similar or closely related goods (section 44 of the Trade Marks Act 1995 (“Act”)).
2. Apple’s marks have acquired a reputation in Australia, and as a result, the use of the Mark by Wholesale Central is likely to deceive or cause confusion (section 60 of the Act).
In dispensing with Apple’s opposition, the ATMO held:
1. In relation to section 44 of the Act, it was not satisfied that a person of ordinary intelligence and memory would be caused to wonder, or be left in doubt whether goods came from Apple, simply because the Mark terminates in the letter “i”, particularly given the “notorious familiarity” amongst Australian consumers with Apple’s goods.
2. In relation to section 60, the fact that Apple’s goods were well known in Australia would therefore not result in a likelihood of consumers being deceived or confused.
In a further blow to Apple, Apple was ordered to pay the legal costs of Wholesale Central.
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