Apple Inc.

This matter concerned trade mark application number 1252301, filed by Apple Inc. The application was initially accepted but subsequently revoked due to a section 41 ground for rejection. Following further adverse reports, the applicant requested a hearing before the delegate of the Registrar of Trade Marks, Bianca Irgang, to argue that the trade mark was distinctive of its services.

The primary legal issue before the Hearing Officer was whether the trade mark application met the requirements of section 41 of the *Trade Marks Act 1995* (Cth), specifically whether the trade mark was capable of distinguishing the applicant's services from those of other persons. This involved considering the inherent distinctiveness of the mark and, if necessary, the extent of its use in distinguishing the applicant's services. The Hearing Officer also had regard to the mandatory nature of section 33 of the Act, which requires rejection of an application if grounds for rejection are established and cannot be overcome.

The Hearing Officer reasoned that the evidence presented by the applicant did not demonstrate that the trade mark, "APP STORE," distinguished the applicant on its own, nor had it acquired a secondary meaning that overshadowed its descriptive nature. The evidence was found to be insufficient to satisfy the requirements of section 41(5) or section 41(6) of the Act. Consequently, a valid ground for rejection under section 41(6) was established.

Accordingly, the Hearing Officer rejected trade mark application number 1252301 in its entirety.