PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd

PDP Capital Pty Ltd (the Applicant) sought to register the trade mark WICKED. Grasshopper Ventures Pty Ltd (the Opponent) opposed this application. The decision was made by Hearing Officer Kate Doherty of the Trade Marks and Designs office.

The central legal issue before the Hearing Officer was whether the Applicant had established that the trade mark WICKED was capable of distinguishing its goods, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved assessing whether the word "wicked" was inherently adapted to distinguish the Applicant's goods or had acquired distinctiveness.

The Hearing Officer found that the Applicant had failed to demonstrate that the plain word WICKED was capable of distinguishing its goods. Consequently, the ground of opposition under section 41 was established. The Hearing Officer also determined that the opposition was successful under section 55(1) of the Act.

As a result, Trade Mark number 1835886 will not proceed to registration. The Applicant was directed to pay the Opponent's costs, calculated in accordance with Schedule 8 of the *Trade Mark Regulations 1995* (Cth). The decision may be appealed to the Federal Court.