Kenman Kandy Pty Limited

Kenman Kandy Australia Pty Ltd applied to register a three-dimensional shape trade mark for confectionery and related goods. An examiner raised objections under section 41 of the *Trade Marks Act 1995* (Cth), asserting that the mark lacked inherent adaptation to distinguish the applicant's goods. Despite multiple examination reports and the applicant providing no evidence of use, the matter proceeded to a hearing before a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the proposed shape trade mark was inherently adapted to distinguish Kenman's goods from those of other traders, and if not, whether the applicant had discharged the onus of demonstrating that the mark, by reason of its use or intended use, or other circumstances, would distinguish the goods. The applicant argued that the shape was a "coined shape" and not merely the shape of the product itself, drawing analogies to established case law concerning trade marks applied to goods rather than being the goods themselves. The applicant also contended that aesthetic appeal did not equate to functionality and that the shape was not descriptive.

The delegate considered the applicant's submissions in light of relevant case law, including *Koninklijke Philips Electronics NV v Remington Products Australia Pty Limited* and *Coca-Cola Co v All-Fect Distributors Limited*. While acknowledging the proposed shape was a "coined shape" and not a commonplace one, the delegate found that it did not, prima facie, satisfy the requirements for inherent adaptation to distinguish. The delegate noted that the shape did not appear to have trade mark significance at first instance, particularly as it was the shape of the goods themselves. Consequently, the delegate determined that section 41(5) of the Act applied, requiring the applicant to demonstrate that the mark would distinguish the goods through use or other circumstances.

As no evidence of use or intended use, beyond an empty packaging sample, was provided, and no other circumstances were presented, the delegate was not satisfied that the proposed trade mark would distinguish the goods from those of others. Accordingly, the delegate found that the applicant had not discharged the onus placed upon it under section 41(5). The application for the trade mark was rejected.