Metricon Homes Pty Ltd v Zac Homes Pty Ltd

Metricon Homes Pty Ltd (the applicant) brought proceedings against Zac Homes Pty Ltd (the respondent) alleging trade mark infringement. The dispute concerned the applicant's registered trade mark and the respondent's use of the phrases "love where you live" and "you love where you live" on its website and in radio advertisements. The court was asked to determine, as a separate question, whether the respondent's use of these phrases constituted use as a trade mark for the purposes of section 120 of the *Trade Marks Act 1995* (Cth).

The central legal issue before Baird J was whether the respondent's use of the impugned phrases served to distinguish its services from those of other providers, thereby acting as a badge of origin. This required an assessment of whether the phrases were used in a manner that indicated the source of the goods or services, rather than merely as descriptive or laudatory statements.

Baird J reasoned that for a mark to be used as a trade mark, it must function as an indicator of origin. In this instance, the court found that the respondent's use of "love where you live" and "you love where you live" on its website and in radio advertisements did not function as a badge of origin. Instead, the phrases were considered to be descriptive of the aspirational outcome of purchasing a home from the respondent, rather than identifying the source of those homes. Consequently, the court answered the separate question in the negative.