Fastrack Racing Pty Limited, Re

This decision concerns trade mark application number 541326, filed by Fastrack Racing Pty Limited. The application initially sought registration for a series of trade marks across multiple classes of goods and services, including vehicle accessories, stationery, clothing, and motor vehicle-related services. The core dispute revolved around the applicant's attempt to navigate objections raised by the Trade Marks Office regarding the descriptiveness of the proposed mark "FAST TRACK" and its similarity to existing registered marks, as well as the fundamental issue of applying for a trade mark across multiple classes.

The legal issues before the delegate of the Registrar of Trade Marks were whether the mark "FAST TRACK" was directly descriptive of the services in class 37, thereby violating section 24 of the Trade Marks Act, and whether it was substantially identical or deceptively similar to earlier registered marks, contravening section 33. Additionally, the delegate had to determine the permissibility of the applicant's attempts to amend the application to cover multiple classes, specifically the refusal to allow the application to proceed in class 25 after initially being considered for class 37, and the Registrar's authority to schedule a hearing when an impasse had been reached at the examination stage.

The delegate reasoned that the term "FAST TRACK" was indeed descriptive of motor vehicle construction, maintenance, and repair services, as it indicated a priority or speed in service delivery, and noted its inclusion in a dictionary of new words. While some objections under section 33 were withdrawn or could be withdrawn upon specific exclusions, the section 24 objection regarding descriptiveness persisted for the remaining class 37 services. The delegate also affirmed the Registrar's authority to schedule a hearing under section 128 of the Act when an application reaches an impasse, particularly after extensive reviews and submissions, to provide an opportunity for the applicant to be heard before a discretionary power adverse to their interests is exercised. The delegate further clarified that sub-section 40(3) of the Act strictly prohibits applications from covering more than one class, and while some latitude is given for early correction of genuine errors, amendments that substantially affect the identity of the mark are not permitted.

Ultimately, the delegate decided to refuse the application. This decision was based on the applicant's failure to overcome the section 24 objection regarding the descriptiveness of "FAST TRACK" for the remaining class 37 services, despite opportunities to amend the specification or accept registration in Part B for different services. The applicant also failed to attend the scheduled hearing, and the delegate concluded that the Registrar's authority to set down the matter for hearing was appropriately exercised given the prolonged impasse and the public interest in concluding unproductive interchanges.