Entain Group Pty Ltd - [2024] ATMO 187

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Trade mark application number 2299366 (41) – QUADDIE COVER - in the name of Entain Group Pty Ltd

Delegate: Bianca Irgang

Representation: John Swinson Legal

Decision: 2024 ATMO 187
Request to be heard under section 33 of the Trade Marks Act 1995- no ground for rejection under section 41(4) - application accepted.
Background

This matter is an ex parte proceeding involving the application for registration of the following trade mark under the Trade Marks Act 1995 (Cth)(‘the Act’):
Trade Mark No: 2299366
Trade Mark: QUADDIE COVER(the ‘Trade Mark’)
Filing Date: 9 September 2022
Applicant: Entain Group Pty Ltd (‘the Applicant)
Specification of Services:
Class 41: Wagering services; Betting information services; Betting on horses; Betting services; Gambling; Gambling services; Provision of amusement facilities
The application was examined as required under section 31 of the Act and accepted for possible registration. The Applicant was advised on 22 November 2022 that the Trade Mark had been examined early and had been accepted but in accordance with international agreements that Australia is party to, the Trade Mark could not proceed to registration at this time. Formal acceptable of the Trade Mark was sent to the Applicant on 10 February 2023. On 10 March 2023, acceptance was revoked and a late ground for rejection was raised under section 41(4). The examiner’s report provided:
As per the letter of Notice of Intention to Revoke Acceptance issued on 10th March 2023, a late Section 41(4) ground for rejection has been identified for this application. I apologise for any confusion or inconvenience caused.
Your trade mark is QUADDIE COVER.
A QUADDIE (quadrella) bet is a type of bet aimed at picking the winners of four nominated races. A COVER bet allows betters to get their stake back (or a similar promotional offering, such as a free bet) if their selection doesn't win but meets certain other criteria. Therefore, as a whole, your trade mark indicates that the claimed services are, or are conducted in relation to, a COVER bet for QUADDIES (quadrellas).
Other traders should therefore be able to use QUADDIE COVER in connection with goods or services similar to yours.
The Applicant was given the option of providing evidence of use of the Trade Mark to overcome the ground for rejection. The Applicant’s legal representative responded by providing writing submissions arguing that the Trade Mark was analogous to the decisions issued by IP Australia being Sportsbet Pty Ltd [2023] ATMO 82 (26 June 2023) and Sportsbet Pty Ltd [2023] ATMO 89 (6 July 2023) (‘the Sportsbet decisions’). Therefore, the Trade Mark should be accepted.
The examiner maintained the ground for rejection under section 41(4). The second report from the examiner stated:
Your submissions have referenced the recent cases Sportsbet Pty Ltd [2023] ATMO 82 (26 June 2023) and Sportsbet Pty Ltd [2023] ATMO 89 (6 July 2023), regarding the marks QUADDIE RESCUE, EXOTIC RESCUE, FIRST4 RESCUE, QUINELLA RESCUE and TOTE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ATMO 187
Decision Date: 30 September 2024

CaseChat Overview and Summary

This matter concerned a trade mark application by Entain Group Pty Ltd for the mark "QUADDIE COVER" in relation to services in Class 41. The application had been examined and a ground for rejection had been raised.

The legal issue before the Hearing Officer was whether the trade mark application should be accepted or rejected, specifically in light of potential grounds for rejection under section 41(4)(a) of the relevant Act. This section pertains to the registrability of trade marks, particularly concerning whether a mark is capable of distinguishing the applicant's goods or services.

The Hearing Officer considered the presumption of registrability and concluded that she was not satisfied that the first element of the ground for rejection existed with respect to all the services in the application. Applying section 33 of the Act, which mandates acceptance unless there are grounds for rejection, the Hearing Officer found no valid ground for rejection under subsection 41(4).

Consequently, the Hearing Officer accepted the trade mark application no. 2299366 in its entirety for possible registration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having taken into account the presumption of registrability I am not satisfied that the first element of the ground for rejection exists under section 41(4)(a) of the Act with regards to all the services in the application. I accept the Trade Mark for all services in class 41 for possible registration. Decision Section 33 of the Act relevantly provides:33Application accepted or rejected(1)The Registrar must, after the examination, accept the application unless he or she is satisfied that:(a)the application has not been made in accordance with this Act; or(b)there are grounds under this Act for rejecting it.Note:For this Act see section 6.(2)The Registrar may accept the application subject to conditions or limitations.Note:For limitations see section 6.(3)If the Registrar is satisfied that:(a)the application has not been made in accordance with this Act; or(b)there are grounds under this Act for rejecting it;the Registrar must reject the application.Note:For this Act see section 6.(4)The Registrar may not reject an application without giving the applicant an opportunity of being heard.Note:For applicant see section 6. I am not satisfied a valid ground for rejection of the application exists under subsection 41(4). I accept trade mark application no. 2299366 in its entirety.Bianca IrgangHearing OfficerTrade Marks Hearings & Opposition30 September 2024

Ratio Decidendi

Legal Principle Established

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Delegate:	Bianca Irgang
Representation:	John Swinson Legal
Decision:	2024 ATMO 187 Request to be heard under section 33 of the Trade Marks Act 1995- no ground for rejection under section 41(4) - application accepted.