KJ Ince Pty Ltd

The matter before the Hearing Officer, Robert Wilson, concerned an application by KJ Ince Pty Ltd to prevent the revocation of its registered trade mark. The Registrar of Trade Marks had issued a notice of intention to revoke the registration, alleging that an error had occurred during the initial examination process, specifically that the trade mark should have been rejected under section 41 of the *Trade Marks Act 1995* (Cth).

The central legal issue was whether the trade mark was not capable of distinguishing the applicant's goods and services from those of other persons, as contemplated by section 41 of the Act. This required the court to consider whether the trade mark was inherently adapted to distinguish the designated goods and services, and if not sufficiently so, whether its use had resulted in it actually distinguishing those goods and services. The court also had to determine if any perceived deficiency in the initial examination constituted an error warranting revocation.

The Hearing Officer approached the matter by undertaking a fresh assessment of the trade mark in light of section 41. He noted that the delegate's view was that the trade mark was only to some extent inherently adapted to distinguish the applicant's goods and services, and that this deficiency had not been overcome by use. However, the Hearing Officer concluded that it was unlikely other traders would wish to use the trade mark for its ordinary signification in relation to the applicant's goods and services without improper motive. Consequently, he was not satisfied that the trade mark was incapable of distinguishing the applicant's goods and services, nor that an error had been made during examination.

As the Hearing Officer was not satisfied that the trade mark should not have been registered, he ordered that the trade mark remain registered.