BeerCo Limited

This matter concerned an application by BeerCo Limited for a trade mark, which the delegate of the Registrar of Trade Marks, Blake Knowles, was required to determine. The applicant had requested a hearing under section 33(4) of the *Trade Marks Act 1995* (Cth) in relation to a ground for rejection under section 41 of the Act. The applicant sought to rely on overseas registrations as evidence of the trade mark's distinctiveness.

The primary legal issue before the delegate was whether the trade mark was capable of distinguishing the applicant's goods from those of other traders, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved assessing the trade mark's "inherent adaptation" to distinguish, and if insufficient, considering whether it had in fact distinguished the goods through use at the relevant date or intended use thereafter.

The delegate applied the principles established in *Clark Equipment Co v Registrar of Trade Marks*, which dictate that a trade mark's capacity to distinguish is assessed by considering the likelihood that other traders, acting honestly, would desire to use the same or a similar mark for their own goods. The delegate noted that the applicant had not provided any evidence of actual use or intended use of the trade mark. Consequently, the delegate was satisfied that the trade mark was not capable of distinguishing the applicant's goods, having regard to the matters set out under section 41(4) of the Act.

As a result of being satisfied that there was a ground for rejection and that the applicant had been given an opportunity to be heard, the delegate rejected the application pursuant to section 33(3)(b) of the *Trade Marks Act 1995* (Cth).