Eli Lilly and Company

This matter concerned a trade mark application by Eli Lilly and Company for the mark >HAIR in class 44, for medical information services in the field of autoimmune diseases. The application was examined by a delegate of the Registrar of Trade Marks, who raised a ground for rejection under section 41 of the *Trade Marks Act 1995* (Cth). The applicant made submissions in response, and the delegate considered the matter afresh.

The delegate was required to determine whether the trade mark >HAIR was capable of distinguishing the applicant's designated services from those of other persons. This involved assessing whether the trade mark possessed sufficient inherent adaptation to distinguish the services, or if it did not, whether it had, in fact, come to distinguish the services through use. The delegate also considered the likelihood of other traders legitimately desiring to use a mark with the same ordinary signification.

In reaching their decision, the delegate considered the ordinary signification of the mark. The word "HAIR" was found to be descriptive of the subject matter of the services, particularly in the context of autoimmune diseases. The symbol ">" was deemed to be a mere embellishment with little impact on the overall impression of the mark, akin to a decorative chevron or bullet point. Applying principles from cases such as *Bayer Pharma Pty Limited v Farbenfabriken Bayer Aktiengesellschaft*, the delegate concluded that the symbol did not add sufficient distinctiveness to the word "HAIR" to make the composite mark inherently adapted to distinguish the designated services. Furthermore, no evidence of use of the trade mark had been provided.

Consequently, the delegate was satisfied that the trade mark did not have sufficient inherent adaptation to distinguish the designated services and that the ground for rejection under section 41 was established. In accordance with section 33(3) of the Act, the delegate rejected trade mark application number 2399323.