Probiotics Australia Pty Ltd

This matter concerned a trade mark application, number 2091384, in classes 1 and 5, for the mark "PAB" filed by Probiotics Australia Pty Ltd. The application was heard by Hearing Officer Tracey Berger.

The primary legal issue before the Hearing Officer was whether the trade mark "PAB" was capable of distinguishing the applicant's goods, or whether there were grounds for rejection under section 41 of the relevant Act. This involved assessing the extent of use of the trade mark and whether consumers would recognise it as a badge of origin for the applicant's goods.

The Hearing Officer considered evidence of use, noting that most of the evidence indicated the mark "PAB" was used as part of product names or codes, such as on product labels alongside specific bacterial strains or in brochures. While some uses, like "PABTM- Feminio Cystitis" in a brochure, might have been recognised as a badge of origin, the Hearing Officer found the overall extent of use to be minimal. Weighing this limited use against the inherent capacity of the mark to distinguish the goods, the Hearing Officer concluded that the mark did not, and would not, distinguish the goods as those of the applicant.

Accordingly, the Hearing Officer was satisfied that a ground for rejection existed under section 41 of the Act and rejected the trade mark application.