Flower Carpet Pty Ltd

Flower Carpet Pty Ltd sought to register the colour pink, applied to pots containing rose plants, as a trade mark under the *Trade Marks Act 1995* (Cth). The application was examined and rejected by the examiner on the grounds that the colour pink was not inherently adapted to distinguish the applicant's goods, as other traders might need to use pink pots for similar goods. The applicant provided extensive evidence and submissions, including statutory declarations from its directors, industry experts, and consumers, to demonstrate that the colour pink had acquired distinctiveness through extensive use and promotion. The matter proceeded to a hearing before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the colour pink, as applied to pots containing rose plants, was capable of distinguishing the applicant's goods from those of other traders, as required by section 41 of the *Trade Marks Act 1995*. This involved considering whether the mark was inherently adapted to distinguish the goods, and if not, whether it had acquired distinctiveness through use. The delegate also had to determine the appropriate approach under section 41, considering the options outlined in *Blount Inc v Registrar of Trade Marks* and the established tests for inherent adaptation to distinguish, such as whether other traders would likely desire to use the colour in the ordinary course of their business.

The delegate reasoned that the colour pink, in the context of rose pots, was not inherently adapted to distinguish the applicant's goods because other traders might reasonably wish to use pink for such pots. Applying the principles from *Clark Equipment Co v Registrar of Trade Marks* and *F H Faulding & Son Ltd v Imperial Chemical Industries of Australia and New Zealand Ltd*, the delegate considered whether other traders would likely desire to use the colour pink for their rose pots without improper motive. The delegate also considered the evidence of acquired distinctiveness under section 41(6), noting the applicant's extensive sales and advertising figures, the promotion of the goods as "The rose in the pink pot," and the expert and consumer evidence suggesting an association between pink pots and Flower Carpet Pty Ltd. However, the delegate ultimately found that the evidence did not establish that the colour pink, as applied to the pots, had acquired the necessary distinctiveness to be registered as a trade mark for rose plants.

The delegate rejected the trade mark application on the basis that the colour pink was not capable of distinguishing the applicant's goods from those of other persons, as required by section 41(2) of the *Trade Marks Act 1995*.