Major League Baseball Properties Inc v the National Magazine Company Limited

The dispute before the court concerned an application to register a trade mark. The applicant, Major League Baseball Properties Inc, sought to register a trade mark, and the opponent, The National Magazine Company Limited, opposed this application. The decision was made by Michael Kirov.

The primary legal issue was whether the trade mark in question possessed sufficient inherent adaptation to distinguish the goods or services for which it was sought to be registered, as required by the *Trade Marks Act 1995* (Cth). Specifically, the court had to consider whether the trade mark was "devoid of any adaptation to distinguish" and, if so, whether the applicant could establish that the trade mark had, through use, come to distinguish the designated goods or services.

The Registrar's delegate had concluded that while the trade mark was not entirely devoid of adaptation to distinguish, the level of adaptation was slight. This conclusion was based on the combination of the type and the colour to which it was restricted, which the delegate found was sufficient to differentiate it from the word 'red' simpliciter. However, the delegate also noted that a trade mark with a low level of inherent adaptation requires a correspondingly higher level of use to demonstrate that it does or will distinguish the designated services. The opponent argued that the opposed mark was merely the word 'RED' simpliciter and was devoid of any adaptation to distinguish, necessitating rejection under s 41(3) of the Act unless use could be established under s 41(6). The evidence of use was limited to the cover of a magazine and associated websites, which the opponent contended was use of their RED Logo, not the opposed mark.