Chinasom Uzodimma Elekwachi

This matter concerned a trade mark application filed by Chinasom Uzodimma Elekwachi for the mark "The Journal of Biblical Evidence & Practice" in respect of class 41 services, specifically "Freelance journalism; dissemination of educational material". The application was examined under the *Trade Marks Act 1995* (Cth), and the examiner maintained a ground for rejection under section 41 of the Act, asserting that the trade mark was not inherently adapted to distinguish the services. The Registrar, through a delegate, was required to make a decision based on the written record.

The primary legal issue before the delegate was whether the trade mark "The Journal of Biblical Evidence & Practice" was capable of distinguishing the applicant's services from those of other persons, as required by section 41(1) of the *Trade Marks Act 1995* (Cth). This involved determining if the trade mark was inherently adapted to distinguish the services, and if not, whether it had acquired distinctiveness through use prior to the filing date.

The delegate applied section 41(3) of the Act, which requires rejection if a trade mark is not to any extent inherently adapted to distinguish the designated goods or services and has not been used to such an extent that it does in fact distinguish them. The delegate found that the trade mark was not inherently adapted to distinguish the services, considering its ordinary signification and the likelihood that other traders would legitimately wish to use such a mark. Furthermore, the applicant's declared first use of the trade mark was in October 2020, which was after the filing date of 5 September 2020. Consequently, the trade mark could not be considered to have acquired distinctiveness through use prior to the filing date.

Based on these findings, the delegate was satisfied that grounds for rejection existed under section 33(1) of the Act. Accordingly, the application to register the trade mark was refused.