When considering potentially conflicting marks and comparing
their respective goods and/or services, it is not simply a matter
of comparing the technical similarities and differences;
it is also important to consider the consumer and the
degree to which the goods and/or services are
substitutable.
In a recent Federal Court decision, Solahart Industries Pty
Ltd v Solar Shop Pty Ltd [2011] FCA 700, Solahart was
successful in establishing that use of SOLARHUT constituted an
infringement of trade mark registrations consisting of the word
SOLAHART. The Court held that SOLAHART and SOLARHUT were
deceptively similar primarily due to the aural similarity of the
marks, and that the respective goods were "goods of the same
description" for the purposes of the Trade Marks Act
1995. Solar Hut used the SOLARHUT mark in respect of photovoltaic
solar cells (solar panels) that generate electricity, and
Solahart's registrations for SOLAHART covered solar hot
water heating systems.
