Harbin Brewing Co., Ltd

This matter concerned an application by Harbin Brewing Co., Ltd (the Holder) to register the trade mark "HARBIN" in relation to beverages. The application was opposed by another party, and the court was required to determine whether the trade mark was inherently adapted to distinguish the Holder's goods or had acquired distinctiveness through use in Australia.

The primary legal issues before the court were whether the trade mark "HARBIN" was inherently adapted to distinguish the Holder's beverages under section 41(6) of the relevant Act, and whether the Holder had provided sufficient evidence of use of the trade mark in Australia to establish distinctiveness. The court also considered the potential for other traders to use the word "HARBIN" to indicate the origin of their beverages.

The court reasoned that "HARBIN" is a geographical name and not inherently adapted to distinguish the claimed goods, as other traders might legitimately use the word to indicate the origin of their beverages. Furthermore, the court found the evidence of use in Australia to be insufficient. While the Holder provided various documents, including registration certificates from China and sales agreements, many were in Chinese without translation, making it impossible to ascertain the nature of the goods or confirm the trade mark's use on them. Although some point-of-sale material featured the trade mark, the court was not satisfied that this, in conjunction with the other evidence, established sufficient use to demonstrate distinctiveness in Australia. The court referenced the principle from *Anheuser-Busch, Inc v Budejovick Budvar, Nrodn Podnik & Ors* that different parts of packaging can contribute to a trade mark's branding function.

The court ultimately found that the trade mark was not inherently adapted to distinguish the goods and that the evidence of use in Australia did not establish distinctiveness. Consequently, the application for registration was not successful.