Fischer Pharmaceuticals Ltd, Re

This decision concerns a trade mark application by Fischer Pharmaceuticals Ltd for the mark ULTRACARE, filed on 20 October 1992, for non-medicated skin care creams and lotions. The examiner objected to the mark's registration on the grounds that it is not an invented word and has a direct descriptive reference to the character and quality of the goods, thus failing to qualify under paragraphs 24(1)(c), (d), and (e) of the Trade Marks Act. The applicant's agents argued that ULTRACARE is allusory, virtually meaningless, not fit for normal descriptive use, and that numerous other "ULTRA" marks on the Register support its acceptance.

The delegate was required to determine whether the trade mark ULTRACARE is an invented word, whether it has a direct descriptive reference to the character or quality of the goods, and whether it is capable of becoming distinctive for the purposes of Part B registration. The delegate also considered the relevance of existing registrations of marks containing the prefix "ULTRA" to the registrability of ULTRACARE.

The delegate reasoned that the words "ultra" and "care" are common English words with established meanings. "Ultra" functions as a prefix meaning "excessive" or "to the greatest degree," and "care" is frequently used in relation to the expected effects of skin creams and lotions. When combined, ULTRACARE clearly conveys a meaning of "care of an extraordinary and extreme kind," which is a laudatory and descriptive term for skin care products. The delegate found that the term is not an invented word, nor is it a covert or skillful allusion to the goods' character. The delegate agreed with the examiner that the mark has a direct and laudatory reference to the goods and lacks inherent distinctiveness, making it unsuitable for Part B registration. The delegate also noted that while numerous "ULTRA" marks exist on the Register, earlier registrations do not automatically bind the Registrar, and the trend has been to tighten acceptance criteria for such marks due to their increased common usage and descriptive nature.

The application for the trade mark ULTRACARE was refused.