ACP Syme Magazines Pty Ltd

This matter concerned an application by ACP Syme Magazines Pty Ltd for registration of the trade mark "street machine" in classes 16 and 41 for printed matter, including magazines, and publishing and related services. The examiner maintained grounds for rejection under section 41 of the *Trade Marks Act 1995* (Cth), finding the mark was not inherently adapted to distinguish the applied-for goods and services because the words have a commonly understood meaning indicating high-performance vehicles used on public roads.

The delegate was required to determine whether the trade mark "street machine" was capable of distinguishing the applicant's goods and services from those of other persons, considering its inherent adaptability and use. The applicant sought to limit the scope of the goods and services to facilitate registration, proposing to restrict class 16 goods to "Printed matter being magazines and similar periodicals" and class 41 services to "Publishing of magazines and similar periodicals; electronic publishing of magazines and similar periodicals; organisation of competitions relating to modified vehicles."

The delegate reasoned that while the applicant's evidence demonstrated a stylised version of "Street machine" had been used for approximately 18 years in relation to a magazine and associated events, this use did not establish that the trade mark as applied for – in standard upper case letters – distinguished the designated goods and services at the filing date. The delegate found that "street machine" was not inherently adapted to distinguish the goods and services, as it is an expression with a known meaning amongst the relevant public, and that the extent of use of the stylised mark did not demonstrate that the applied-for mark distinguished the goods and services from those of other persons.

Consequently, the delegate rejected the trade mark application under section 41(2) of the *Trade Marks Act 1995* (Cth), as the trade mark was found to be neither inherently adapted to distinguish nor established to distinguish the designated goods and services through use.