Kelsian Group Limited

This decision concerns an application by Kelsian Group Limited for registration of the trade mark "BRILLIANT TRAVELS" for services including travel insurance, travel agency services, booking services, and accommodation. The application was initially examined and grounds for rejection were raised under sections 41 and 44 of the *Trade Marks Act 1995* (Cth). Following further examination reports, Kelsian Group Limited requested a hearing before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade mark "BRILLIANT TRAVELS" was capable of distinguishing Kelsian Group Limited's services from those of other persons, as required by section 41 of the Act. This involved determining whether the mark was inherently adapted to distinguish the services and, if not, whether its use had acquired distinctiveness by the filing date of the application. The delegate was required to consider the ordinary signification of the mark and the likelihood that other traders would legitimately wish to use it for similar services.

The delegate reasoned that the ordinary signification of "BRILLIANT TRAVELS" to consumers of travel services is "distinguished" or "excellent" travel, which is directly descriptive of the services offered. Applying the test from *Clark Equipment Co v Registrar of Trade Marks*, the delegate found that other traders would likely wish to use the mark or a similar mark in relation to their own travel-related services. Consequently, the delegate concluded that the trade mark was not inherently adapted to distinguish the services. Furthermore, the delegate was not satisfied, on the balance of probabilities, that the extent of use of the trade mark by Kelsian Group Limited prior to the application date had resulted in it actually distinguishing the services as being those of the applicant.

Accordingly, the delegate found that a ground for rejection existed under section 41(3) of the *Trade Marks Act 1995* (Cth) because the trade mark was not inherently adapted to distinguish the designated services and had not acquired distinctiveness through use. Therefore, the application for registration of the trade mark "BRILLIANT TRAVELS" was refused.