Trade mark decision

BL Number
Decision date
21 September 2006
Hearing Officer
Mr D Landau
Kingston Estate Wines Pty Ltd
E & J Gallo Winery
Sections 5(2)(b) & 5(3)


Section 5(2)(b): Opposition successful. Section 5(3): Opposition failed.

Points Of Interest

  • None


The opponent is the owner of the mark RIVERCREST registered in Class 33 in respect of alcoholic beverages (except beers). It also filed details of use of is mark and after considering the evidence the Hearing Officer determined that such use had been in relation to “still California wines”. Also while the use shown was satisfactory the Hearing Officer considered it unlikely that such use had enhanced the notoriety of its mark. The Hearing Officer accepted, however, that the mark RIVERCREST was a distinctive mark.

Under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the respective marks RIVERCLIFF and RIVERCREST. He considered that they had visual and aural similarities and went on to find that the respective marks were similar and that the opponent succeeded on this ground.

As regards the ground under Section 5(3) the Hearing Officer noted that use had extended over a relatively short period and, in relation to the goods at issue, had a limited market share. He therefore, concluded that the opponent did not have the necessary reputation to sustain its claims under Section 5(3) of the Act. Opposition failed on this ground.

Full decision O/268/06 PDF document100Kb