Luxury car maker Daimler has lost its bid to prevent a Chinese construction machinery firm from using what it perceives to be a similar logo in New Zealand.

According to a judgment released from the Court of Appeal today, Daimler opposed registration of the Sany logo as it believed it would deceive or cause confusion because of its similarity to the Daimler trademarks.

Sany was incorporated in China in 1989 and manufactures and exports construction machinery not limited to road rollers, excavators, diggers, hydraulic pumps, buses and cars.

Sany logo. Image / Getty
Sany logo. Image / Getty

The company applied to register its trademark in New Zealand in August 2006, which was approved by the Assistant Commissioner of Trade Marks.

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Daimler meanwhile, began as an automobile manufacturer in 1882 and began to use the three-pointed star trade mark on its vehicles internationally in 1909 and in New Zealand in 1911.

Today Daimler manufactures a of cars, trucks, buses and other industrial products under the Mercedes-Benz brand.

Daimler lost a previous appeal over the issue at the High Court in 2014.

In Daimler's submission to the Court of Appeal, counsel Paul Johns said that in the High Court judgment Justice David Collins placed too much emphasis on the differences between the marks and because Justice Collins found there were similarities between the two trade marks, sufficient similarity was established.

In the High Court decision, Justice Collins said:

"Both involve a circle with a three-pronged device that either abuts or slightly overlapses the edges of the circle.

"The three-pronged devices are aligned in a similar way in both sets of marks. However, those similarities are minor."

Johns said the differences then identified Justice Collins were not enough to neutralise the shared conception, particularly when allowances were made for imperfect recollection.

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Rather, he said, both the dominant concepts and visual appearances of the two trade marks were similar.

The "three 1s" concept behind the Sany mark was too abstract to have any impact on the perception of consumers in New Zealand and the Daimler trade marks also had a "trifecta ambition", namely, "on land, on water, and in the air", he submitted.

However, Court of Appeal Justices Ellen France, Helen Winkelmann and Douglas White said in their judgment that they agreed with Justice Collins and the Assistant Commissioner.

"In particular, like Collins J, when we look at the Sany mark we do not think of the Daimler marks," their judgment stated.

Even when an allowance was made for imperfect recollection, the Court of Appeal justices said they found Jutice Collins' summary compelling, which stated:

"The Daimler marks are clearly a representation of a star and symbolise superior quality.

"The simplicity of the Daimler marks is one of their striking features.

"On the other hand, the Sany mark looks like a spinning rotor. It is a complicated device, the meaning of which is hard to discern by looking at the mark.

"Purchasers in the relevant markets could not confuse the Sany mark with Daimler's three-pointed star within a circle.

"The device elements in the Sany and Daimler marks are not visually or conceptually similar."

Daimler's appeal was subsequently dismissed.

See the full court decision here: