Chrysiliou IP represents clients of all sizes, from international companies that own world-famous brands to small Australian businesses.

In a recent case before the Australian Trade Marks Office, Highdawn Pty Ltd v. John Howard [2013] ATMO 48 (13 June 2013), Chrysiliou IP assisted the applicant, John Howard, in opposition proceedings commenced by Highdawn Pty Ltd (‘Highdawn’).

Mr Howard applied to register the following trade mark in respect to ‘handyman repair, maintenance and installation services’:

Hire A Hubby

Highdawn, the entity associated with the ‘Hire A Hubby’ franchise, opposed the application.

Among other things, the Trade Marks Office decided that Mr Howard’s trade mark was not deceptively similar to Highdawn’s trade mark registration for HIRE A HUBBY, which was registered for similar services to those covered by Mr Howard’s application. The Trade Marks Office stated that the expressions ‘Hubby Hire’ and ‘Hire A Hubby’ both allude to home handymen offered for hire to perform repair and maintenance services traditionally the domain of husbands. It added that, consequently, the expressions themselves may be less likely to be viewed by consumers as the badge of origin for a particular trader, so that other material in Mr Howard’s trade mark should be given weight for the purposes of comparison. This other material included the presence of the word HOWARDS’ and the alliteration in Mr Howard’s trade mark from the repetition of the sound of the letter ‘H’, which is bolstered by the letters ‘H’ being stacked on top of each other.

The Trade Marks Office also decided that while Highdawn had demonstrated some reputation in the expression ‘Hire A Hubby’ and while there may be a possibility of confusion between the trade marks, it was not satisfied that on the balance of probabilities that the danger of confusion is ‘real and tangible’. Highdawn had argued that the likelihood of confusion between the respective trade marks is increased as handyman services are undertaken on an urgent basis, so that consumers do not labour over choice. However, the Trade Marks Office was of the view that the majority of handyman jobs are either not urgent, or so complex and financially significant to a consumer that careful attention would be taken by consumers in selecting the appropriate tradesperson. The Trade Marks Office also noted that the ‘Hire A Hubby’ trade mark did not feature the name of a particular tradesman, whereas Mr Howard’s trade mark did.

Highdawn’s opposition was dismissed by the Trade Marks Office and Mr Howard was awarded costs. Mr Howard’s trade mark is now registered.

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