Heritage Seeds Pty Ltd

This matter concerned a trade mark application by Heritage Seeds Pty Ltd for the mark "PLUS AR1" in relation to grass seeds and grains. The application was opposed by other parties who also traded in similar products, specifically ryegrass varieties that could be sold with or without a registered endophyte, identified as AR1. The dispute centred on whether the proposed trade mark possessed sufficient inherent distinctiveness to be registered.

The primary legal issue before the Hearings Officer was whether the combination of the word "plus" and the registered variety name "AR1" was capable of distinguishing the applicant's goods from those of other traders in the field. The examiner had raised grounds for rejection under subsection 41(5) of the relevant legislation, asserting that the trade mark as a whole lacked inherent adaptation to distinguish.

The Hearings Officer agreed with the examiner, applying established principles regarding inherent distinctiveness. The decision referenced authorities such as *Clark Equipment Co v Registrar of Trade Marks* and *Burger King Corporation v Registrar of Trade Marks*, which emphasise that inherent distinctiveness is a quality of the mark itself, not something acquired through use. The Hearings Officer found that "AR1" is the name of a specific, registered organism and, as such, is descriptive and lacks inherent distinctiveness. The addition of "PLUS" was also considered insufficient to confer distinctiveness, as the combination "ryegrass variety X plus AR1" is likely to be used descriptively by other traders to indicate the presence of the AR1 endophyte. The evidence of use provided by the applicant did not demonstrate consistent use as a trade mark, but rather as a descriptive term, and therefore did not satisfy the requirement of distinctiveness.

Consequently, the Hearings Officer found that the trade mark was not capable of distinguishing the applicant's goods as required by subsection 41(5) and therefore rejected trade mark application 1050042.