ATP Institute Pty Ltd

In the matter of ATP Institute Pty Ltd, the applicant sought to register the trade mark ‘Multi Food’. The court was required to determine whether the proposed trade mark was capable of distinguishing the applicant's goods and services from those of other traders, or if it was too descriptive and likely to be used by other traders in a legitimate manner.

The central legal issue before the court was whether the trade mark ‘Multi Food’ was inherently adapted to distinguish the applicant's goods and services. This involved considering the ordinary signification of the words and whether other traders might legitimately need to use the mark in relation to their own goods or services, without improper motive. The court had to assess evidence of third-party use of the term to ascertain if it was being used as a badge of origin or in a descriptive sense.

The court reasoned that while there was evidence of third-party use of the term ‘Multi Food’, some of this use appeared to function as a badge of origin, indicating the source of goods. However, the court also found evidence of use in a descriptive sense, such as in product descriptions like ‘Herbal Multi-Food Supplement’. This dual significance led the court to conclude that other traders would likely desire to use the words ‘Multi Food’ for their ordinary signification, meaning the mark was not inherently adapted to distinguish the applicant's goods and services. The court referenced established principles from cases like *Telstra Corporation Limited v Phone Directories Company Pty Ltd* and *Sports Warehouse Inc v Fry Consulting Pty Ltd* regarding the assessment of ordinary signification and the admissibility of evidence of other traders' use.