PET DRS PTY LTD

This decision concerns an application by PET DRS PTY LTD for registration of the trade mark NOURISH PET CO. for goods in Classes 3 and 5, including perfumery products for pets, cosmetics for animals, and dietary pet supplements. The application was examined and the examiner raised grounds for rejection under sections 41 and 44 of the *Trade Marks Act 1995* (Cth). The matter was determined by a delegate of the Registrar of Trade Marks.

The legal issues before the delegate were whether the trade mark NOURISH PET CO. was sufficiently inherently adapted to distinguish the applicant's goods from those of other persons, and whether it was deceptively similar to any registered prior trade marks. Specifically, under section 41, the delegate had to consider if the trade mark was not capable of distinguishing the applicant's goods, either because it was not inherently adapted to distinguish and had not acquired distinctiveness through use, or because it was only to some extent inherently adapted to distinguish and would not, in light of its inherent distinctiveness, use, and other circumstances, distinguish the goods. Under section 44, the delegate had to assess whether the trade mark was deceptively similar to four cited prior registered trade marks.

The delegate reasoned that while the words "nourish" and "pet" are descriptive of the goods and their intended recipients, the composite phrase "NOURISH PET CO." had an unusual syntax that required some inference of meaning, thereby imbuing it with a degree of distinctiveness. However, the delegate found that this inherent distinctiveness was not sufficient. Applying the principles from *Clark Equipment Co v Registrar of Trade Marks* and *Cantarella Bros Pty Limited v Modena Trading Pty Limited*, the delegate considered the ordinary signification of the words in context. While the trade mark was not wholly devoid of inherent distinctiveness, it was found to be only to some extent, but not sufficiently, inherently adapted to distinguish. The delegate then considered the applicant's submissions regarding use, noting they were not in declaratory form but still commented on the moderate social media following and significant advertising spend. However, the provided details lacked specificity regarding the extent of exposure at the priority date, which was particularly relevant to the section 44 assessment.

The delegate concluded that the trade mark was not sufficiently inherently adapted to distinguish the applicant's goods and that the evidence of use did not overcome this deficiency. Furthermore, the delegate found the trade mark to be deceptively similar to prior registered marks, particularly in relation to the word "NOURISH" and the element "PET CO." The application for registration of the trade mark NOURISH PET CO. was therefore rejected.