Mantra IP Pty Ltd

This matter concerned an application by Mantra IP Pty Ltd for registration of the trade mark 'BALÉ' for tourism and accommodation services. The application was rejected by the Hearing Officer, Robert Wilson, on the grounds that the trade mark was not capable of distinguishing the applicant's services from those of other persons, pursuant to section 41 of the *Trade Marks Act 1995* (Cth).

The primary legal issue before the Hearing Officer was whether the trade mark 'BALÉ' was inherently adapted to distinguish the applicant's services, or whether it had acquired distinctiveness through use. This involved considering the ordinary signification of the word 'BALÉ' to Australian consumers of tourism and accommodation services, and the likelihood of other traders legitimately wishing to use the same or a similar mark. The Hearing Officer also had to determine if the applicant's use of the trade mark had, in fact, distinguished its services in the marketplace.

The Hearing Officer reasoned that 'BALÉ' is a Portuguese word meaning 'ballet' and is also the name of a province in Burkina Faso. While the applicant argued that the word was obscure to Australian consumers and likely to be perceived as a meaningless foreign word, the Hearing Officer found it reasonable to suppose that the province of Balé might become a recognised tourist destination in the future. This potential for legitimate use by other traders meant the mark was not inherently adapted to distinguish the applicant's services. Furthermore, the evidence of the applicant's use of the mark, primarily in conjunction with other branding such as "Peppers Balé Salt," was found to be insufficient to establish acquired distinctiveness, leading to the conclusion that the mark was a "limping mark" that could not stand on its own.

Consequently, the Hearing Officer rejected the application for registration of the trade mark 'BALÉ'.