Opposition by Olaf Kretzschmar to registration of trade mark application number 2018105 (class 45) - IP SERVICE INTERNATIONAL (Figurative) - in the name of IP Service International Pty Ltd

This matter concerned an opposition by Olaf Kretzschmar to the registration of the figurative trade mark application number 2018105, IP SERVICE INTERNATIONAL, in Class 45, filed by IP Service International Pty Ltd. The opposition was heard by Nicole Worth, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issues before the Hearing Officer were whether the trade mark was capable of distinguishing the applicant's services from those of other persons, as required by section 41 of the *Trade Marks Act 1995* (Cth). Specifically, the Hearing Officer had to consider whether the trade mark was inherently adapted to distinguish the services and, if not sufficiently so, whether its use had resulted in it actually distinguishing the services.

The Hearing Officer considered evidence of the applicant's use of the words "CURVACEOUS FOR WOMEN WITH CURVES" with varying degrees of stylisation and/or a device since 2007. The evidence indicated that the applicant was a clothing retailer and had achieved registrations for similar composite and plain text marks in Australia and New Zealand. The Hearing Officer found that the trade mark, particularly the leading word "curvaceous," had acquired a degree of distinctiveness through extensive use over more than nine years, coupled with increasing sales and advertising exposure. Weighing the evidence of use against the inherent distinctiveness of the mark, the Hearing Officer was satisfied that the trade mark qualified for registration.

Consequently, the Hearing Officer ordered that the application be accepted, with an endorsement added to the Register to reflect that it was considered under section 41(4) of the *Trade Marks Act 1995*.