In more detail

Craft Drinks is the proprietor of the TAP Marks, both registered in Class 43. In addition to TAP Mark 1, a plain word mark "TAP", TAP Mark 2 consists of the following: 

The proceedings arose as Craft Drinks opposed the following mark sought to be registered by Tapout, also in Class 43 ("TAP OUT Mark"): 

Similarity to a well-known mark

First, upon considering the evidence, the PAR found that Craft Drinks' evidence was not sufficient to show that the TAP Marks were well-known in Singapore to the relevant sector of the public — in this case, consumers of beer beverages. For example, Craft Drinks had not demonstrated how the promotion of the TAP Marks had been targeted at these consumers such that the TAP Marks enjoyed an established reputation among them. While Craft Drinks had shown evidence of the awards and online coverage given to Craft Drinks, the awards were for Craft Drinks' food. While the online sites did mention Craft Drinks' beer, their reach and impact on the relevant consumers was uncertain.

Similarity of the marks 

Next, the PAR considered the similarity of Tapout's "TAP OUT" Mark and Craft Drinks' TAP Mark 1:

"TAP OUT" Mark	TAP Mark 1

Overall, the PAR found the marks to be more dissimilar than dissimilar, the only aspect of similarity being conceptual similarity. This concept was also found not to be distinctive of the services in question, given that it alluded to the kind of drinks offered.

Visual similarity

When considering visual similarity between the marks, the PAR commented that "TAP", as a common English word in plain block font, had low inherent technical distinctiveness. In the context of the services for which TAP Mark 1 is registered, consumers would easily recognize that "TAP" alludes to the kind of drinks (beers on tap) offered, meaning that TAP Mark 1 would not enjoy a high threshold before a competing sign would be considered dissimilar to it.

The PAR further found that the dominant and distinctive features of the "TAP OUT" Mark lay in the words "TAP OUT" and the tap device "". The PAR therefore found that the marks were visually more dissimilar than similar, and that the "TAP OUT" Mark was sufficiently differentiated, being a complex mark with word and figurative elements. The length and structure of the marks, the layout design, and the presence of a device element in the "TAP OUT" Mark all served to differentiate the "TAP OUT" Mark from TAP Mark 1.

Aural similarity

In terms of aural similarity, the PAR found that the aurally dominant component of the "TAP OUT" Mark was "TAP OUT" and not just "TAP". Though there was aural commonality in the "TAP" element of the respective marks, the "OUT" component sufficiently and substantially differentiated the marks, such that they were aurally more dissimilar than similar.

Conceptual similarity

Last, the PAR viewed that TAP Mark 1, in the context of restaurant/bar services, would evoke the idea of a tap. In finding that there was a medium degree of conceptual similarity between the marks, the PAR opined that the tap device "​" and the words "CRAFT BEERS" in the "TAP OUT" Mark would similarly evoke the idea of craft beers being dispensed out of a tap. This was in spite of Tapout's argument that the inspiration for the "TAP OUT" Mark came from Tapout's director, who had a background in mixed martial arts and thought that the words would be appropriate in a situation where a patron had too much to drink and was 'tapping out'. The PAR observed that the relevant public would likely not view the "TAP OUT" Mark as evoking the idea of someone signaling defeat.

As the similarity of the marks was a threshold requirement before proceeding to the likelihood of confusion requirement, and the marks were ultimately found to be dissimilar, this ground of opposition failed. 

Passing off

Craft Drinks had relied on both TAP Marks for the ground of passing off, but given the PAR's finding that the "TAP OUT" Mark and TAP Mark 1 were more dissimilar than similar, the PAR focused on TAP Mark 2 for this ground:   

"TAP OUT" Mark	TAP Mark 2

The PAR ultimately dismissed this ground of opposition. Among the key considerations were the following.

First, TAP Mark 2 had low distinctiveness, even taking into account its prior use. In the PAR's view, all of the elements that constitute the TAP Mark were descriptive, not distinctive, or would be seen as merely decorative and not having trademark significance. For example, the words "CRAFT BEER BAR" described Craft Drinks' service. The word "TAP", together with a droplet of liquid appearing at the bottom of the letter "T", confirmed that the word "TAP" referred to a dispensing tap device, and was also not distinctive as it alluded to a kind of beer (beer on tap).

The marks were also visually similar to a very low degree. Though there were distinct similarities (for example, the two lines of text and black background), these were either commonplace and banal, or descriptive. The PAR also found the marks to have low aural similarity. That said, the marks were conceptually similar to a high degree, with both evoking the idea of beer being dispensed from a tap.

The PAR also observed that the parties both operated bars that offered a range of craft beers and western bar food, which increased the likelihood of confusion. The PAR considered how a member of the relevant public in Singapore would perceive the respective marks in use: the services would on average be used relatively frequently, and in selecting the services the average consumer would consider factors such as cost, the type of cuisine offered, and the standards of customer service and hygiene, such that the level of attention paid during the selection process would be medium. The services would also likely be selected visually, following the viewing of signage on the front of the premises, or orally, following oral recommendations. In this way, the visual and aural components would play an equal role in the selection process.

While the PAR observed that any fraudulent intent in Tapout adopting the "TAPOUT" Mark would go toward increasing the likelihood of confusion, the PAR found no such fraudulent intent. Again, "TAP" is a common English word and also one commonly used in the context of restaurant/bar services to indicate a kind of beer (beer on tap). 

In all, and even bearing in mind the principle of imperfect recollection, the PAR found that it was unlikely that consumers would misremember or inaccurately recall the marks as each other. Though the marks shared the opening word "TAP", customers would notice the differences between the marks and be able to distinguish them, such that there was no likelihood of direct confusion. The PAR also considered, and dismissed, the possibility of indirect confusion.

Key takeaways

This decision sheds light on the analysis the Registry and courts will take when evaluating similar marks and emphasizes the restricted protection offered by plain word marks where their meaning has a clear conceptual link to the goods or services for which they are registered. The decision serves as another reminder to registrants to carefully consider their trademarks and logos and ensure that these are as distinctive as possible in relation to their goods and services of interest.

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