Corvina Quality Foods Pty Ltd, Re

This matter concerned an application by Corvina Quality Foods Pty Ltd for registration of a trade mark in Part A of the Register. The mark comprised the words "AUSSIE DELIGHTS" and was intended for use in relation to confectionery and other goods in Class 30. The examiner raised a requirement for a disclaimer in respect of the words "AUSSIE DELIGHTS", to which the applicant consented regarding "AUSSIE" but objected to regarding "DELIGHTS".

The legal issues before the delegate of the Registrar of Trade Marks were whether the words "AUSSIE DELIGHTS" were inherently distinctive of the applicant's goods, and consequently, whether the mark could be registered in either Part A or Part B of the Register without a disclaimer of the exclusive use of those words. The applicant argued that the mark should be viewed as a whole and that "DELIGHTS" was a common term in the confectionery industry, citing examples such as "Turkish delight". The applicant also presented evidence of significant sales during a fundraising activity and a Federal Court order that compelled a third party to cease using the mark and withdraw their opposition.

The delegate agreed with the examiner that a disclaimer was necessary. Applying principles from cases such as *Mark Foy's Ltd v Davies Coop & Co Ltd* and *Advanced Hair Studio of America Pty Ltd v Registrar of Trade Marks*, the delegate found that the words "AUSSIE DELIGHTS" had a direct reference to the character and quality of the goods, indicating their origin and pleasurable attributes. The word "DELIGHTS" was also considered to have a laudatory connotation, appealing directly to the senses when applied to food. Furthermore, the delegate determined that these words were not invented or coined words, and that other traders would legitimately require them for normal descriptive use. Consequently, the mark lacked inherent distinctiveness, and evidence of actual distinctiveness, while noted, was insufficient to overcome the inherent non-distinctiveness, as per *Burger King Corporation v The Registrar of Trade Marks*.

The delegate ordered that the applicant be allowed one month from the date of the decision to consent to a disclaimer of the exclusive use of the words "AUSSIE DELIGHTS". If no such consent was provided, the application would be refused.