Irene Notaras
[2013] ATMO 98
•25 November 2013
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Trade Mark Application number 1396532 (21) - SHAPE OF A COFFEE MACHINE - in the name of Irene Notaras.
| Delegate: | Heath Wilson |
| Representation: | Applicant: Shaun Creighton of Arete Trade Marks Attorneys |
| Decision: | 2013 ATMO 98 Ex Parte: Section 41 of the Trade Marks Act 1995 – shape trade mark – limited inherent adaptation to distinguish – trade mark rejected. |
Background
On 25 November 2010, Irene Notaras (‘the Applicant’) applied to register a trade mark for the following designated goods:
Class 21: Coffee percolators, non-electric; non-electric coffee brewers; non-electric coffee makers
The trade mark is the shape of a coffee machine and is currently depicted on the Trade Marks Register in the following manner:
Endorsements: The mark consists of the three dimensional shape of a coffee making apparatus as shown in the accompanying graphical representation.
(‘the Trade Mark’)
The trade mark application was examined as required under section 31 of the Trade Marks Act 1995 (‘the Act’). The examiner reported the belief that there was a ground for rejecting the application under section 41(6) of the Act. Section 41(6) is a provision that existed under the Act prior to the amendments introduced via the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth). Those amendments came into effect on 15 April 2013 and I will therefore consider the section 41 as it existed prior to the amendments.[1] The examiner’s objection was on the basis that the Trade Mark was a shape commonly used for the designated goods and accordingly had no inherent adaptation to distinguish the Applicant’s goods from those of other traders.
[1] Clearlight Investments Pty Ltd v Sandvik Mining and Construction Oy [2013] ATMO 50; See also Knowles Airconditioning & Plumbing Pty Ltd [2013] ATMO 42.
On 13 December 2012, the attorney for the Applicant provided a response to the first examination report and submitted two statutory declarations both made by the Applicant on 30 November 2012. The examiner was not satisfied by the evidence or submissions and on 15 January 2013 issued a second report maintaining the ground for rejection under section 41(6).
After the Applicant provided further evidence and submissions on 5 July 2013, the third report comprised a notice of intention to reject. Under section 33(4) of the Act, the Applicant subsequently requested to be heard on the matter.
The evidence before me was that before the examiner and comprises the statutory declaration of Irene Notaras made 30 November 2012 with annexures IN-1 to IN-58 (‘Notaras 1’), the second declaration of Ms Notaras also made on 30 November 2012 with annexures 1 to 24 (‘Notaras 2’), and also a third declaration made by Ms Notaras on 5 July 2013 with annexures 1 to 76 (‘Notaras 3’).
I am a delegate of the Registrar of Trade Marks and I heard this matter on 25 September 2013 in Canberra. The Applicant appeared in person and was represented by Shaun Creighton of Arete Trade Marks Attorneys. As a preliminary matter at the hearing, I requested further clarification regarding the exact nature and scope of the Trade Mark application. Specifically, the various pictorial representations of the Trade Mark include expressions such as ‘ATOMIC CAPPUCCINO MAKER’, ‘Bon Trading Co’ and ‘Made in Italy’. I further note that the application is described as a ‘Composite” mark on the Register. However, the endorsement simply describes the Trade Mark as consisting of “the three dimensional shape of a coffee making apparatus as shown in the accompanying graphical representation.”
The Applicant confirmed that the words visible in the representations did not form part of the Trade Mark and was agreeable to an endorsement to that effect. Having established the nature of the Trade Mark, the primary question before me is whether the shape is inherently adapted to distinguish the designated goods, and I proceed on that basis in my following reasons.
A Brief History of the Trade Mark
The coffee maker was originally designed in Italy in 1946 by a Mr Giordano Robbiati and named the ‘ATOMIC’ coffee maker. A patent was filed in Milan, Italy around that time. Earlier versions of the machine were primarily just for espresso, but it was subsequently developed to include a steam wand for frothing milk (which can be seen in the representations of the Trade Mark).
Since at least 1964, the Applicant has been trading in Australia under the name Bon Trading Company. On 15 September 1965, Mr Robbiati wrote to the Applicant initially indicating a willingness to grant the business exclusive distribution rights for Australia of the ATOMIC branded coffee machines, and later that he had already done so.
From the evidence before me, I am satisfied that the Applicant became the sole Australian distributor of the ATOMIC branded coffee maker in around 1965. The Applicant also designed instruction sheets and booklets in English for the distribution of the product in Australia and went to considerable expense and effort in promoting the product. However, it is equally clear that the Applicant was acting as the Australian distributor of the ATOMIC coffee machine. Although sales figures from this early period are not in evidence, Ms Notaras attests that the sales of the ATOMIC coffee machine in Australia outshone its sales in other parts of the world.
The Applicant declares that sometime in the late 1980s, Mr Robbiati said to her words to the effect of:
Keep the Atomic alive, keep it selling, carry it on. I want you to continue the business.
From 1980 to 1990, Bon Trading Co. apparently acquired the moulds for the ATOMIC machines and all the related technical materials. In addition, the Applicant arranged for former employees and contractors of Mr. Robbiati to produce the machines in Italy. The above are simply assertions, and no supporting documentation regarding the transfer of the ownership of the Trade Mark to the Applicant, is before me.
At the outset, I will mention that issues surrounding the word ‘ATOMIC’ as a trade mark for coffee machines have been touched upon in the Registrar’s decisions of Jack Grieve and also Irene Notaras v Jack Grieve[2]. As it has been confirmed in the current proceedings that the word ‘ATOMIC’ does not form part of the Trade Mark, those decisions have limited relevance here. That said, the latter decision provided further history and comment regarding the ownership of the rights to manufacture and sell this particular shape of coffee maker - to which I will return later.
[2] Jack Grieve [2010] ATMO 12; Irene Notaras v Jack Grieve [2010] ATMO 64.
Reasons
At the time of filing, section 41 of the Act relevantly provided:
Section 41:Trade mark not distinguishing applicant’s goods or services
(1)…
(2)An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons.
(3)In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.
(4)Then, if the Registrar is still unable to decide the question, the following provisions apply.
(5)If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so distinguishing the designated goods or services:
(a)the Registrar is to consider whether, because of the combined effect of the following:
(i)the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;
(ii)the use, or intended use, of the trade mark by the applicant;
(iii)any other circumstances;
the trade mark does or will distinguish the designated goods or services as being those of the applicant; and
(b)if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons; and
(c)if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons.
(6)If the Registrar finds that the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:
(a)if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
(b)in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.
‘Inherently Adapted to Distinguish’
The Trade Mark consists of the shape of a stovetop coffee maker. Mr Creighton argued on the Applicant’s behalf that the Trade Mark was either inherently adapted to distinguish the designated goods (s41(3)), or alternatively that the Trade Mark had at least a limited inherent adaptation to distinguish and that the evidence provided was sufficient for the Trade Mark to be accepted under the provisions of section 41(5).
The considerations relevant in the assessment of whether a trade mark is inherently adapted to distinguish its goods have often been reproduced, but I think it appropriate here to set out in detail the words of Kitto J in Clark Equipment Co v Registrar of Trade Marks[3] (“Clark Equipment”):
That ultimate question must not be misunderstood. It is not whether the mark will be adapted to distinguish the registered owner’s goods if it be registered and other persons consequently find themselves precluded from using it. The question is whether the mark, considered quite apart from the effects of registration, is such that by its use the applicant is likely to attain his object of thereby distinguishing his goods from the goods of others. In Registrar of Trade Marks v. W. & G. Du Cros Ltd. (1913) AC 624, at pp 634, 635 Lord Parker of Waddington, having remarked upon the difficulty of finding the right criterion by which to determine whether a proposed mark is or is not "adapted to distinguish" the applicant's goods, defined the crucial question practically as I have stated it, and added two sentences which have often been quoted but to which it is well to return for an understanding of the problem in a case such as the present. His Lordship said: "The applicant's chance of success in this respect (i.e. in distinguishing his goods by means of the mark, apart from the effects of registration) must, I think, largely depend upon whether other traders are likely, in the ordinary course of their businesses and without any improper motive, to desire to use the same mark, or some mark nearly resembling it, upon or in connexion with their own goods. It is apparent from the history of trade marks in this country that both the Legislature and the Courts have always shown a natural disinclination to allow any person to obtain by registration under the Trade Marks Acts a monopoly in what others may legitimately desire to use." The interests of strangers and of the public are thus bound up with the whole question, as Hamilton L.J. pointed out in the case of R.J. Lea, Ltd. (1913) 1 Ch 446, at p 463; (1913) 30 RPC 216, at p 227; but to say this is not to treat the question as depending upon some vague notion of public policy: it is to insist that the question whether a mark is adapted to distinguish be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives - in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess - will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it. (Emphasis added)
[3] Clark Equipment Co v Registrar of Trade Marks (1964) 111 CLR 511 (at 513–14); [1965] ALR 344 at [345–6].
The test was slightly rephrased by Kitto J in the case of FH Faulding & Co Ltd v Imperial Chemical Industries of Australia and New Zealand Ltd[4]:
[T]hat the question to be asked in order to test whether a word is adapted to distinguish one trader's goods from the goods of all others is whether the word is one which other traders are likely, in the ordinary course of their businesses and without any improper motive, to desire to use upon or in connexion with their goods.
[4] FH Faulding & Co Ltd v Imperial Chemical Industries of Australia and New Zealand Ltd [1965] HCA 72; (1965) 112 CLR 537 at 555.
The comments of Justice Stone in Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks[5] (‘Kenman Kandy’) made reference to the above test articulated by Kitto J in Clark Equipment:
Kitto J was referring to word trade marks because that was the issue before him, but there can be no doubt that his Honour's test would equally apply to shapes or other signs forming "part of the common heritage".
[5] Kenman Kandy (Australia) Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273; (2002) 122 FCR 494; (2002) 56 IPR 30; (2002) AIPC 91-817 at [146]. These comments were defined as ‘obiter’ by the Full Federal Court in Modena Trading Pty Ltd v Cantarella Bros Pty Ltd [2013] FCAFC; (2013) 102 IPR 382.
While I note that in Modena Trading Pty Ltd v Cantarella Bros Pty Ltd[6] the Full Court expressed some doubt about whether this principle was correct for shape trade marks (or indeed trade marks other than ‘words’), those comments were obiter and the Full Court did not find it necessary to resolve the issue determinatively.
[6] Modena Trading Pty Ltd v Cantarella Bros Pty Ltd [2013] FCAFC; (2013) 102 IPR 382 at [70]-[71].
Applying the above tests to the Trade Mark before me, there are a number of elements that inform the question of whether the shape has the inherent ability to function as a trade mark. Sundberg J helpfully summarized the considerations in Global Brand Marketing Inc v YD Pty Ltd[7]. However, I find that the most important of these for the Trade Mark are as follows:
(b) Non-descriptive features of a shape point towards a finding that such features are used for a trade mark purpose. Where features are striking, trade mark use will more readily be found. For example, features that make goods more arresting of appearance and more attractive may distinguish the goods from those of others: All-Fect at [25].
…
(d) Where the trade mark comprises a shape which involves a substantial functional element in the goods, references to the shape are almost certainly to the nature of the goods themselves rather than use of the shape as a trade mark: Mayne at [63]. For example, evidence that a shape was previously patented will weigh against a finding that the shape serves as a badge of origin: Remington at [12] and Mayne at [69].[8]
[7] Global Brand Marketing Inc v YD Pty Ltd [2008] FCA 605; (2008) 76 IPR 161; [2008] AIPC 92-286 at [61 to 64].
[8] Mayne Industries Pty Ltd v Advanced Engineering Group Pty Ltd [2008] FCA 27; (2008) 166 FCR 312; [2008] AIPC 92-277; (2008) 75 IPR 102 and Koninklijke Philips Electronics NV v Remington Australia Pty Ltd [1999] FCA 816; (1999) 91 FCR 167; 44 IPR 551; [1999] AIPC 39,542 and Coca-Cola Co v All-Fect Distributors Ltd [1999] FCA 1721; (1999) 96 FCR 107; 47 IPR 481; [2000] AIPC 37,086; [2000] ATPR 41-735.
Two examples from the Federal Court regarding features that fall into the category of being striking, attractive or making the goods more “arresting of appearance”, include:
The silhouette, the fluting at the top and bottom and the label band were striking features of bottle-shaped confectionary.[9]
In relation to the shape of a shoe, a combination of the stylised ‘YD’ Label stitched to the inside sole, the patterned sole, a rounded piece at the back of the sole and the flat sole with rubber panels coming from the sides.[10]
[9] Coca-Cola Co v All-Fect Distributors Ltd (op. cit).
[10] Global Brand Marketing Inc v YD Pty Ltd (op.cit).
Notaras 2 contains a number of statements from members of the public attesting to the uniqueness and artistic appeal of the Trade Mark shape. These customers invariably refer to the machine as “the ATOMIC” and some of them mention the connection to an Italian coffee maker. The comments are somewhat influenced by the following prompt contained in the form provided to the customer which states “I recognize this object of distinctive shape as being –“. Those words quite obviously direct the person to believe that the shape is in fact distinctive of a particular trader within the industry.
Ms Notaras indicated that “Coffee is made by forcing boiling water through the ground coffee and this function can be housed in many shapes”[11]. However, there must be a commonality of features present in all functioning coffee machines (including stove-top coffee machines). In the Trade Mark, the steam wand and the coffee jug are clearly elements which are functional in nature. By itself, there is nothing striking, in my view, about the round coffee jug that forms part of the claimed shape. Nevertheless, it must be remembered that the assessment of a trade mark under section 41 is not of its particular features in isolation, but of the trade mark as a whole. In this regard, the overall shape of this bulbous coffee machine is stylized and striking, obviously made in such a way as to not only be functional, but also visually appealing to the consumer. To a certain extent, this sets it apart from its functional features and somewhat distinguishes the Trade Mark. I find that the appearance of the overall shape is to assist in distinguishing this coffee maker from those of other traders. Accordingly, I find that the Trade Mark should be assessed under the provisions of s41(5) rather than s41(6) of the Act.
[11] Notaras 2, paragraph 9.
Similar shapes
According to the evidence extracted during examination, there are similar shapes to the Trade Mark within this industry. These examples of coffee machines comprise museum or collectors pieces from 1950s onwards that were predominantly sold in overseas markets. While there are also examples of visually different stovetop espresso makers, the fact that there are other forms that coffee makers may have, is not determinative. The essential question is whether other traders will ordinarily think of this particular shape and desire to use it (or a shape nearly resembling it) in connection with their coffee makers.
In addition to the historical examples in the evidence of the ATOMIC coffee machine, there are examples of what the Applicant refers to as “imitations”, namely, the ‘Otto Stovetop Espresso maker’ and the ‘La Sorrentina coffee machine’. Mr Creighton argues that these examples constitute use actuated by improper motives and therefore should not be used as evidence that the shape of the Trade Mark is commonplace, or that it lacks any inherent adaptation to distinguish. The examples of similar looking coffee machines (the Otto and the La Sorrentina) invariably attribute the shape to an original Italian design by Mr Robbiati and/or state that their product is based on that historical design.
As any rights in the patent or design of the ATOMIC coffee machines have long since expired, there is nothing (on the face of it) ‘improper’ about such use. However, those traders do not appear to be utilizing the shape because it is part of ‘the common heritage’ but rather with reference to a particular memorable shape they recognize as indicative of a particular trader. Once again, to paraphrase Kitto J in Clark Equipment, the question is not whether the Applicant’s registration of the Trade Mark would preclude other traders from using that particular shape and for that reason, its shape will distinguish the Applicant’s goods - but whether the shape of the Trade Mark itself inherently performs the function of distinguishing the designated goods.
There is mention of Mr Robbiati’s patent for the coffee maker in the evidence and in previous decisions from the Registrar’s delegates. However, there is no evidence before me of this patent or any details as to whether it was the same shape and whether that shape was necessary to perform a particular function. It is clear that whatever the nature of the patent that existed in Italy, it expired a long time ago. I note the similar comments of Hearing Officer Windsor in Irene Notaras v Jack Grieve[12]:
Nothing which has been put before me suggests that Ms Notaras has or had any specific rights in the design and appearance of the Robbiati coffee maker. The Robbiati patents which resulted in the original coffee maker function are now in the public domain and have been for many, many years. This means that anyone who wants to manufacture a coffee maker based on the method revealed in the patents should be able to do so. If the end result is something that looks similar to the original Robbiati coffee maker, nothing in the evidence suggests that Ms Notaras has any right to prevent either its manufacture or its sale. She may have the right in some circumstances to take action under the provisions of the Act in respect of the word ATOMIC when it is used on coffee makers. As a far as I can see, this is the extent of her rights.
[12] Irene Notaras v Jack Grieve (supra) at [55].
Having commented on the overall shape of the Trade Mark, it is nevertheless dictated to an extent by the need to achieve a particular technical result or functional outcome (i.e. to make coffee on a stove-top). For the above reasons, I find that the Trade Mark is only to some extent inherently adapted to distinguish the designated goods under section 41(5) of the Act.
The Applicant’s Evidence of Use
I now turn to the assessment of whether the Applicant’s evidence would allow the Trade Mark to be accepted because of the combined effect of the use or intended use of the Trade Mark, the extent to which it is inherently adapted to distinguish coffee makers and any other circumstances relevant to the application.
Acceptance of a trade mark under s41(5) is predicated on whether, because of the above factors, the Trade Mark does or will distinguish the goods as being those of the Applicant.[13] This wording is important on the facts before me. In essence, the evidence of use should perform the task of distinguishing Ms Notaras as the owner of the Trade Mark, rather than any other party.
[13] See section 41(5)(a) of the Act, as it stood prior to 15 April 2013.
Notaras 3 affirms that the Applicant (trading as the business Bon Trading Co) promoted the coffee maker in Australia. The declaration makes it equally clear that the shape of the machine is hand-crafted in Italy and has therefore only ever had limited production. Ms Notaras emphasizes that her company created the market in Australia and that it was introduced into Australia by her company. Accepting those statements, I find that the majority of the evidence of Trade Mark use before me is quite dated (between 1966 and 1980) and occurs at the time when the Applicant was the Australian distributor, effectively operating under license from Mr Robbiati.
The aluminium disc label that appears on the representations of the Trade Mark as filed (although not forming part of the Trade Mark per se) bears the word ‘ATOMIC’ along with the name “Bon Trading Co”. This was the particular label applied to the coffee maker distributed in Australia. However, the Applicant’s evidence contains other historical examples of ‘ATOMIC’ branded coffee machines presumably sold in countries other than Australia featuring a different label (for example, ‘ATOMIC - Milan B Brevetti Robbiati – British Patent’). The Applicant has also declared that “Mr Robbiati often made label to identify distributor” (sic).[14]
[14] Notaras 2, Annexure 18.
Apart from a short period in the late 1990s, the coffee machines have always been made in Italy and the Applicant’s business, Bon Trading Co., has predominantly been involved in parts, services and repairs. For her part, the Applicant declares that she is still selling the machines in Australia (made in Italy) and that Australian customers come to her for parts, services and new machines.[15] As a side note, the Applicant has only applied to register the Trade Mark in relation to the manufacture of the coffee makers, rather than for any retail or repair/maintenance services. Despite the declaration regarding the Applicant’s sales of the coffee machine, there is scant evidence of sales and little advertising. Although some revenue figures have been provided dating from 2007[16] until the priority date, they are not substantial and it is likely that some of the figures relate to the sale of parts for coffee machines, or for the repair of existing machines. Additionally, certain articles on the history of the machine mention that the ATOMIC coffee machine is now a rarity and difficult to obtain. Those statements would be unlikely to arise if the machine was at all times readily available for purchase in Australia from the Applicant.
[15] Notaras 3, paragraph 11.
[16] Notaras 3, annexure 76
A survey is provided at annexure 12 to Notaras 3. The circumstances under which this survey was made have not been supplied by the Applicant. I note that this evidence paints the unlikely scenario that not one of the persons surveyed failed to recognize the Trade Mark. The Applicant’s survey form contains a picture of the Trade Mark and two of the questions asked were:
Who do you recognise to be the source of the above shape?
Who do you recognise to be connected and supplier of the above?
It is likely that the Applicant surveyed a number of its own customers as many of them comment on the fact that they actually own an ‘ATOMIC’. If this is accurate, the answers given by the customers are telling. The responses to the first question vary from “Bon Trading” to “ATOMIC, Italy” to “ATOMIC-Bon Trading”. The answer to the second question is invariably Bon Trading, but I note other answers include “sold by Bon Trading” and “from Italy via bon trading”. The variations in answer are not surprising given the ambiguous nature of the first question coupled with labeling of the product in Australia and the history of its use.
There are some examples of the Trade Mark appearing in newspaper advertisements from the 1960s and the 1980s and a few examples from the 1990s. As mentioned, there is little evidence of the Applicant’s sales or advertising of the shape comprising the Trade Mark since the 1980s. Throughout the early decades, the role of Bon Trading Co as the distributor is clearly mentioned. In addition, one example from the 1990s (at a time when it is alleged that the Applicant owned rights in the production of the machine) advertises the product in the following way:
This snazzy foaming gadget, created by Atomic in Italy, will come to the party for $159. Available from David Jones or call Bon Trading Co...
More recently, on the Applicant’s website[17], it is made clear that neither the Bon Trading Company nor the Applicant is the manufacturer of the product. It states:
[17] Notaras 1, annexure IN-48.
Where are ATOMIC® Coffee Makers made?
The coffee makers are being built by the same manufacturers in Milan in Italy.
By itself, the fact that the machine is being manufactured overseas is not fatal to the application as long as the shape is performing the function of distinguishing the Applicant’s designated goods. As Barwick CJ said in Bayer Pharma Pty Ltd v Fabenfabriken Bayer AG[18]:
It may be that, in some circumstances, what begins as a foreign manufacturer’s mark may in time end as the registrable mark of the local distributor of that manufacturer’s products or, for that matter, of the distributor’s own manufactured goods. But in such cases, at least there must be a clear dissociation from the initial significance of the mark so as to warrant the conclusion that the mark has become exclusively indicative in Australia of the local distributor’s goods.
[18] Bayer Pharma Pty Ltd v Fabenfabriken Bayer AG (1965) 120 CLR 285 (at 323).
I am not satisfied that the Applicant’s evidence has demonstrated such a case. The initial significance of the Trade Mark is emphasised in much of the evidence with clear reference to the original manufacturer in Italy. The Applicant has not supplied sufficient evidence of use, intended use or other circumstances to demonstrate that the Trade Mark may be accepted under the pre-15 April 2013 provisions of section 41(5)(b) of the Act.
Decision
Section 33 of the Act provides:
Section 33:Application accepted or rejected
(1)The Registrar must, after the examination, accept the application unless he or she is satisfied that:
(a)the application has not been made in accordance with this Act; or
(b)there are grounds under this Act for rejecting it.
Note:For this Act see section 6.
(2)The Registrar may accept the application subject to conditions or limitations.
Note:For limitations see section 6.
(3)If the Registrar is satisfied that:
(a)the application has not been made in accordance with this Act; or
(b)there are grounds under this Act for rejecting it;
the Registrar must reject the application.
Note:For this Act see section 6.
(4)The Registrar may not reject an application without giving the applicant an opportunity of being heard.
Note:For applicant see section 6.
I am not satisfied that the Trade Mark is capable of distinguishing the designated goods under section 41 and I therefore reject the application pursuant to section 33(3)(b) of the Act.
Heath Wilson
Hearing Officer
Trade Marks Hearings
25 November 2013
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