Opposition by Southern Vintners & Negociants Pty Ltd to registration of trade mark application number 1905068 (35) – NEGOCIANTS - in the name of Samuel Smith & Son Pty Ltd

This matter concerned an opposition by Southern Vintners & Negociants Pty Ltd to the registration of the trade mark application number 1905068, "NEGOCIANTS", in the name of Samuel Smith & Son Pty Ltd. The proceedings were heard by Louise Tuohy, a Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the ground of opposition nominated by the Opponent, relating to the registrability of the trade mark under section 41 of the *Trade Marks Act 1995* (Cth), had been established. Section 41 addresses trade marks that are not capable of distinguishing the applicant's goods or services from those of other persons. The Opponent bore the onus of proving this ground on the balance of probabilities.

The Hearing Officer found that the Opponent had not established the nominated ground of opposition. In reaching this decision, the Hearing Officer considered the provisions of section 41, which outlines circumstances where a trade mark is not taken to be capable of distinguishing, including situations where the mark is not inherently adapted to distinguish and has not acquired distinctiveness through use, or where it is only partially inherently adapted and has not acquired sufficient distinctiveness through use and other circumstances. The Hearing Officer concluded that the trade mark could proceed to registration.

Accordingly, the Hearing Officer decided that trade mark number 1905068 may proceed to registration one month from the date of the decision, subject to an endorsement that the provisions of s 41(3) of the Act were applied. Costs were awarded against the Opponent.