Mobile Skips (Australia) Pty Ltd

This matter concerned a trade mark application by Mobile Skips (Australia) Pty Ltd for the mark "MOBILE SKIPS" in Class 39, relating to the collection, clearance, storage, handling, transport, removal, and dumping of waste and rubbish, specifically via trailerable bins. The application was examined and a ground for rejection was raised under section 41(3) of the *Trade Marks Act 1995* (Cth), on the basis that the mark was not inherently adapted to distinguish the applicant's services and that evidence of use did not demonstrate distinctiveness in fact. The applicant requested a hearing, submitting evidence including declarations and an expert report.

The delegate of the Registrar of Trade Marks was required to determine whether the trade mark "MOBILE SKIPS" was inherently adapted to distinguish the applicant's services, and if not, whether the applicant's use of the mark had, in fact, acquired distinctiveness by the filing date. The delegate also considered the applicant's previous unsuccessful application for the same trade mark, which had been rejected on similar grounds, and the applicant's argument that the registration of composite marks incorporating "MOBILE SKIPS" indicated a prior acceptance of the mark's distinctiveness.

In reaching the decision, the delegate considered the ordinary meaning of "mobile" and "skip" and concluded that the term "MOBILE SKIPS" directly described the services offered, namely the transport of movable waste containers. The delegate found that the mark was not inherently adapted to distinguish the applicant's services. While acknowledging the extensive evidence of use, including significant website traffic, advertising, and a substantial market share in the "trailerable" skip bin market, the delegate found this evidence insufficient to establish distinctiveness in fact. The delegate noted that the previous application for the same mark had also failed to demonstrate distinctiveness in fact, and that the evidence presented in this application did not materially alter that conclusion, particularly given the descriptive nature of the mark.

The application for the trade mark "MOBILE SKIPS" was rejected under section 41(3) of the *Trade Marks Act 1995* (Cth).