Enviroderm Australia Pty Ltd

This matter concerned a proposal to revoke the acceptance of trade mark application number 892808, for the mark "FreshlyPure", filed by Enviroderm Australia Pty Ltd. The application, accepted on 29 January 2002 for cleaner/sanitiser preparations in Class 3, was subsequently considered for revocation by a Principal Examiner. The basis for the proposed revocation was that the acceptance had been granted in error, specifically due to an alleged failure by the Acceptance Officer to conduct adequate research and consider the meaning of the words comprising the trade mark. Enviroderm Australia Pty Ltd applied to be heard, and the matter came before a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the acceptance of the trade mark application had occurred due to an "error or omission" within the meaning of subsection 38(1)(a) of the *Trade Marks Act 1995*. The applicant contended that the trade mark was capable of distinguishing the goods and that confusion with the common usage of "freshly" and "pure" was unlikely, nor was it probable that other traders would need to use these words to describe similar goods. The Principal Examiner, however, believed that the trade mark described an effect of the goods and that other traders would likely need to use these words, and that this ground for rejection under Section 41 of the Act had not been raised due to the alleged error.

The delegate considered the meaning of "error" in the context of trade mark law, referencing legal commentary and case law, including the *Smooth and Silky* case. The principle established was that an error, for the purposes of revocation of acceptance, typically involves a fundamental mistake, such as missing a relevant dictionary meaning or an earlier conflicting registration. A mere difference of opinion or a change of mind by a trade mark officer does not constitute an error. The delegate found that the Acceptance Officer had conducted research on the words "freshly" and "pure" and the combined term "FreshlyPure" using trade mark facilities and internet search engines. While a specific dictionary definition for "freshly" was not explicitly obtained, the delegate concluded that this did not amount to an omission of a relevant meaning, given the commonality of the word. The delegate was not convinced that the Acceptance Officer did not understand the primary meaning of "freshly" and noted that the work-file indicated the officer had considered the mark and its meaning, deeming it "not an apt term for the goods." The delegate found no evidence that the research was inadequate or that its results were not considered, concluding that the acceptance did not proceed on an error of fact.

Consequently, the delegate found no error or omission in the acceptance of the application, but rather a difference of opinion between the Acceptance Officer and the Principal Examiner. Therefore, the delegate declined to revoke the acceptance of the application under subsection 38(1) of the Act. The application was to proceed to advertisement as accepted, in accordance with subsection 34(b) of the Act.