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There is not a single common letter in master and
in King. The two words are so unlike to the eye
and to the ear that counsel for the appellant was
forced to rely on the likelihood of deception
arising from the two words conveying the same
idea of the superiority or supremacy of the article
as a mechanism for making a spray similar to
falling rain or artificial rain as it was called during
the argument. But it is obvious that trademarks,
especially word marks, could be quite unlike and
yet convey the same idea of the superiority or
some particular suitability of an article for the
work it was intended to do. To refuse an
application for registration on this ground would
be to give the proprietor of a registered trademark
a complete monopoly of all words conveying the
same idea as his trademark. The fact that two
marks convey the same idea is not sufficient in
itself to create a deceptive resemblance between
them, although this fact could be taken into
account in deciding whether two marks which
really looked alike or sounded alike were likely to
deceive. As Lord Parker said in the passage cited,
you must consider the nature and kind of customer
who would be likely to buy the goods. A
purchaser of spray nozzles and sprinklers would
not be likely to be lacking in discernment. He
would not be in a hurry to buy. He would not be
likely to pay any attention to the presence of a
common word like rain in the combination. That
prefix already appears in other trademarks for
goods of the same description sold on the
Australian market such as Rainwell, Rainmaker,
Rain Queen, and Rainbow. The learned register
was right in holding that the only similarity
between the two marks is the common prefix
Rain and that this similarity is not sufficient to
create a reasonable likelihood of deception when
the remaining portions of the marks are so
different. (at p539).
Our attention has also been drawn to an order of a Delegate of the
Registrar of Trade Marks in Re :- Opposition by Southcorp Wines Pty Ltd.
to the registration of trade mark application number 749793 in the name of
Kemenys Food & Liquor Pty. Limited for the trade mark, comprising the
words DEVILS RIDGE and device, in Class 33 wherein on the question of
similarity of the words DEVILS LAIR and DEVILS RIDGE both being
brand names of wines, it was observed :-