Austereo Pty Ltd v DMG Radio (Australia) Pty Ltd

Austereo Pty Ltd contested the registration of a trade mark application by DMG Radio (Australia) Pty Ltd. The mark in question was "sounds different," which DMG Radio sought to register to distinguish its radio broadcasting services. The dispute was brought before the court, which had to determine whether the mark met the legal criteria for distinctiveness and whether it could be registered under the relevant trade mark legislation. The central legal issues revolved around whether the phrase "sounds different" had acquired distinctiveness through use and whether it was inherently capable of distinguishing DMG Radio's services from those of others.

The court examined whether the phrase "sounds different" had achieved distinctiveness through use, and whether it was inherently adapted to distinguish DMG Radio's services. It considered industry practices and the common use of descriptive terms in radio broadcasting. The court acknowledged that while the phrase "sounds different" might be used to distinguish DMG Radio's services, it found that neither "sounds" nor "different" alone were adapted to distinguish DMG Radio's services as they were descriptive terms commonly used in the industry. The court concluded that while the phrase had some degree of inherent adaptation to distinguish, it was not sufficient to meet the statutory requirements for registration.

The court allowed the appeal, set aside the decision of the delegate, and upheld the opposition to the application. The court ruled that the mark "sounds different" was not sufficiently distinctive and could not be registered. Consequently, the application for registration was refused. The respondent was ordered to pay the applicant's costs of the appeal and the opposition proceedings.