Kimberley-Clark Corporation v Registrar of Trade Marks

The applicant, Kimberley-Clark Corporation, sought to register the trade mark "KLEENEX" for paper handkerchiefs. The Registrar of Trade Marks opposed the application on the grounds that the mark was not distinctive and was likely to deceive or cause confusion. The matter came before McTiernan J of the High Court of Australia.

The central legal issue before the Court was whether the trade mark "KLEENEX" was capable of distinguishing the applicant's goods from the goods of other persons. This involved considering whether the mark was inherently adapted to distinguish the goods, or whether it had acquired distinctiveness through use. The Registrar also argued that the mark was descriptive of the goods, and therefore not registrable.

McTiernan J found that the word "KLEENEX" was not descriptive of paper handkerchiefs. His Honour considered that the mark was an invented word, or at least a word not in common use, and therefore possessed the inherent quality of distinctiveness. The Court applied the principles of trade mark law, which require a mark to be capable of distinguishing the applicant's goods. The Registrar's opposition was dismissed.