Insufficient reputation in ANIMAL HOUSE – really? Am I that old?

Universal City Studios LLC v Philip Gorecki [2017] ATMO 18 (27 February 2017)

Registration was sought for the mark ANIMAL HOUSE and the mark depicted below in respect of various services including night club services, music festivals etc.

animal-house

It was opposed on ss 42(b), 60 and 62A grounds.

No grounds successful – mark to proceed to registration.

Opponent relied on reputation vesting in the 1978 film National Lampoon’s Animal House.

Hearing officer considered that the Opponent’s evidence on reputation was insufficient to “establish that the title of the Film had a reputation in Australia, as a trade mark, among a significant section of the relevant public as at the priority dates of the Trade Marks“.   This was fatal to the s 60 ground and also meant that there was no basis for a finding that the use of the marks would be misleading or deceptive (which was the foundation of the s 42(b) ground).

In relation to s 62A, the hearing officer accepted that the Applicant’s account of why he chose the mark (he had run a series of dance parties, the first of which had a Noah’s Ark theme where patrons were encouraged to dress-up as animals…) was “reasonable on its face and has not been refuted by the Opponent.”

 

 

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