Brightflash USA LLC

This matter concerned an application by Brightflash USA LLC to register the trade mark "IWATCH" in Australia. The application had been accepted for registration by the Registrar of Trade Marks, but a request was made for a hearing under section 33(4) of the *Trade Marks Act 1995* (Cth). The hearing officer, Nicholas Smith, was tasked with determining whether the application should be accepted or rejected.

The primary legal issue before the hearing officer was whether the trade mark "IWATCH" was inherently adapted to distinguish the applicant's goods, specifically GPS devices, from the goods or services of other persons, as required by section 41 of the *Trade Marks Act 1995*. This consideration arose in the context of the Registrar's obligation under section 33 of the Act to accept an application unless satisfied there were grounds for rejection.

The hearing officer reasoned that the ground of opposition under section 41 had not been established in relation to the applicant's goods. He found that the trade mark "IWATCH" was not descriptive of GPS devices and that there would be no necessity for other traders to use the word in relation to such goods. Consequently, he was satisfied that the trade mark was inherently adapted to distinguish the applicant's goods.

Accordingly, the hearing officer accepted the application for registration of the trade mark "IWATCH".