Abalner Pty Ltd

This matter concerned an application by Abalner Pty Ltd for registration of a trade mark. The Registrar of Trade Marks had proposed to revoke the acceptance of the application, leading Abalner Pty Ltd to seek a review of this decision before the Hearings Officer.

The primary legal issue before the Hearings Officer was whether the trade mark, in relation to the services for which it was sought to be registered, did and would distinguish those services from the goods or services of other persons, as required by section 41(4)(b) of the relevant Act. The Hearings Officer also had to determine whether revocation of the acceptance was reasonable in the circumstances.

The Hearings Officer found that, considering the combined effect of the matters specified under section 41(4)(b) of the Act, and particularly in light of Abalner Pty Ltd's long and continuous use of the trade mark in relation to the claimed services, the trade mark did and would distinguish those services. This conclusion was also found to be true as of 30 January of the year of the decision, when the Registrar notified Abalner Pty Ltd of the proposed revocation.

Consequently, the Hearings Officer concluded that revocation of acceptance was not reasonable. The application was directed to proceed to registration, with the endorsement "Evidence and/or other circumstances provided under s 41(4)", as the required registration fee had already been paid.