Trade mark decision

BL Number
Decision date
10 September 2002
Hearing Officer
Mr G Salthouse
National Australia Trustees Limited
Sea World Inc
Sections 3(6) & 5(2)(b)


Section 3(6) - Opposition failed.

Section 5(2)(b) - Opposition successful.

Points Of Interest

  • 1. The applicants claimed use and claimed co-existence for some seven years in the UK did not deflect the opponents opposition under Section 5(2)(b).


The opponents opposition was based on their ownership of registrations of the mark SEA WORLD and device of a dolphin in Classes 16 and 41 and of the mark SEA WORLD in Classes 16, 28 and 41. They also claimed that their marks were well known in the UK, having been used in America since 1970. They also cast doubt on the applicants claimed use of their mark in the UK since the mark is used with the descriptive term "Gold Coast Australia" or is in the form SEA WORLD NARA.

The applicants claimed their mark has been in use in Australia since 1971 and was first used in the UK in 1993. A number of companies sell package holidays to Australia including entry to the SEA WORLD theme parks.

Under Section 3(6) the opponents claimed that the applicants had known of their mark and had deliberately chosen a very similar mark. Thus their application was in bad faith. However, no evidence was filed by the opponents to substantiate this claim so the Hearing Officer dismissed this ground.

Under Section 5(2)(b) the Hearing Officer noted that the respective marks, while not identical, were very similar. He went on to compare the applicants claimed services in Class 39 with the opponents registered services in Class 41 and concluded that, as the both related to marine park amusement services, they were similar. As the respective marks and services were similar the Hearing Officer concluded there was a likelihood of confusion of the public. Opposition succeeded on this ground.

Full decision O/370/02 PDF document65Kb