Babawine Pty Ltd

Babawine Pty Ltd (‘the Applicant’) sought to register the trade mark GO FOAM FREE! in Class 20 for plastic trays and transparent food containers used in food packaging. The application was examined and initially rejected by the Examiner on the grounds that the mark was not capable of distinguishing the applicant's goods from those of other traders, pursuant to section 41 of the *Trade Marks Act 1995* (Cth). The Applicant requested a hearing, and the matter was considered by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the trade mark GO FOAM FREE! was capable of distinguishing the applicant's goods. This involved considering whether the mark was inherently adapted to distinguish the goods, and if not sufficiently so, whether use or other circumstances would cause it to distinguish. The core of the dispute centred on the interpretation of the phrase "GO FOAM FREE!" and whether it was descriptive of the goods or a term that other traders would legitimately need to use.

The delegate reasoned that the ordinary signification of the words "FOAM FREE" clearly indicated that the plastic trays and containers did not contain foam, a characteristic that consumers might find desirable given environmental concerns. While the addition of "GO" and the exclamation mark introduced an element of exhortation or suggestion, the delegate found that the mark as a whole was not sufficiently inherently adapted to distinguish the goods. The delegate noted that the applicant had not provided any evidence of use or other circumstances to demonstrate that the mark actually distinguished the goods in the marketplace. Applying the principles from cases such as *Clark Equipment Co v Registrar of Trade Marks* and *Cantarella Bros v Modena Trading*, the delegate concluded that other traders would likely desire to use a similar phrase to describe foam-free packaging, meaning the mark was not inherently adapted to distinguish.

Consequently, the delegate found that the trade mark application failed to meet the requirements of section 41(4) of the Act, as it was only to some extent, but not sufficiently, inherently adapted to distinguish the claimed goods, and there was no evidence of use or other circumstances to overcome this deficiency. The application for the trade mark GO FOAM FREE! was therefore rejected.