Ice Cream Group Australia Pty Ltd v Australasian Food Group Pty Ltd

Ice Cream Group Australia Pty Ltd (the applicant) sought to register two trade marks, "ICE CREAM GROUP" and "ICE CREAM GROUP AUSTRALIA", for goods in class 30, namely "ice cream and frozen confectionary". Australasian Food Group Pty Ltd (the opponent) opposed the registration of both marks under section 52 of the *Trade Marks Act 1995* (Cth), arguing that the marks were not capable of distinguishing the applicant's goods from those of other persons. The matter was heard by Nicholas Barbey.

The primary legal issue before the court was whether the proposed trade marks were inherently adapted to distinguish the applicant's goods, as required by section 41 of the *Trade Marks Act 1995* (Cth). The opponent contended that the terms "ice cream" and "ice cream group" were descriptive of the goods and therefore lacked the necessary distinctiveness to function as trade marks.

The court considered the meaning of "ordinary signification" in the context of trade marks. It found that while "ice cream" is a common descriptor for the goods, the addition of "group" to form "ice cream group" or "ice cream group Australia" did not render the marks devoid of distinctiveness. The court reasoned that the combination of words, particularly when presented as a trade mark, could be capable of distinguishing the applicant's goods from those of other traders. The court concluded that the marks were not merely descriptive and possessed inherent distinctiveness.

The court dismissed the opposition and ordered that the trade marks proceed to registration.