Reckitt and Colman (Australia) Limited v Boden [1945] HCA 12

San Remo, aust pane Cov ations Pty Macrmo

Lid v Duco- Gourme!

Coffee'

'Magic (Aust (2000) Sra sate 84 HIGH COURT (1945, [HIGH COURT OF AUSTRALIA.] RECKITT & COLMAN (AUSTRALIA) LIMITED — AppeLiant; OPPONENT, AND BODEN . : ' : 4 : 5 . Respondent. APPLICANT,

H.C. or A, Trade Mark—Registration—Opposition proceedings—Similarity of trade marks— 1945. Likelihood of deception—Onus of proof—Trade Marks Act 1905-1936 (No. 20 WwW of 1905—No. 75 of 1936), ss. 25, 114.

— An application for the registration of a trade mark consisting of the word ame Pe 3 " Dekol" in class 1 in respect of wood preserving oils and paints was opposed, on the ground that the proposed mark would be likely to deceive, by the

Tether OJ proprietor of a trade mark registered in respect of disinfectants and germicides

Meniemnan and included in class 2 and consisting of a design in the approximate form of a

keyhole across which the word " Dettol" was prominently displayed trans- versely over a perpendicular sword. "Dettol" is a relatively expensive preparation mainly sold by chemists to the public in small quantities in bottles ranging from 4 ozs. upwards and is also sold in larger quantities in tins to hospitals and similar organizations, whereas " Dekol," an oily paint- like substance, is sold mainly at hardware stores by the gallon in tins. There was no evidence that any confusion or deception had ever occurred.

Held, by Latham ©.J., Dixon and McTiernan JJ. (Rich and Williams JJ. dissenting), that on the evidence the applicant had discharged the onus of showing that his mark was not likely to deceive, and, therefore, that he was entitled to registration of the mark.

Apprat from the Deputy Registrar of Trade Marks.

An application was made by Alexander Boden, carrying on

business under the registered firm name of Alex. Minter & Co., at Number 75 Elizabeth Street, Sydney, Chemist, to register the word "Dekol" as a trade mark in class 1 in respect of wood preserving oils and paints.