In a passing off decision from the Federal Court, Justice Fuhrer
held that linguistic expert evidence from the plaintiff and
defendant was inadmissible on the issue of confusion.
The case centered on whether the marks SLOTOPOLY and SLOTOMANIA
were confusingly similar. To support their positions, both parties
relied upon academic experts.
The plaintiff relied upon a Professor of English Linguistics who
opined as to the degree of resemblance between the trademarks in
appearance, sound, and ideas suggested. The defendants relied upon
a sociolinguistic expert who opined on the degree of resemblance
between the trademarks as concerns appearance, sound, and
ideas.
The Court found the opinions to be abstract and incomplete
because neither expert played the video games at issue and they
failed to base their opinions on a consideration of the context or
manner in which the marks would be encountered by the consumer.
Further, the Judge held that both opinions were
