Raytheon Company

This matter concerned an application for the registration of the trade mark MALD by Raytheon Company. The dispute arose because the trade mark was considered to have only some inherent adaptation to distinguish the applicant's goods, meaning that the applicant was required to provide evidence of use or intended use to support its registrability. The hearing officer, Alison Windsor, was tasked with determining whether the evidence presented by Raytheon Company was sufficient to overcome this deficiency.

The primary legal issue before the hearing officer was whether the trade mark MALD was capable of distinguishing the goods for which it was sought to be registered, given its limited inherent distinctiveness. This required an assessment of the evidence of use and other relevant circumstances provided by the applicant, particularly in the context of a narrow market where purchasers might be more aware of industry terminology. The hearing officer also had to consider the provisions of subsection 41(5) of the relevant Act, which mandates the provision of supporting evidence for trade marks with limited inherent adaptability.

The hearing officer was satisfied that Raytheon Company had provided sufficient evidence to demonstrate the use of MALD as a trade mark. This evidence included declarations detailing the origin of the term, its adoption by the US Air Force, and Raytheon's subsequent sole contracting for goods using the mark since 2003. The declarations also outlined various promotional activities, including presentations to Australian Defence Force personnel, and provided examples of the trade mark's use on promotional materials and publications, including the company's public website. The hearing officer found that the relevant market in Australia would have been educated to understand MALD as Raytheon's trade mark, rather than merely an acronym for a descriptive term.

Consequently, the hearing officer was satisfied that there were no grounds for rejecting the application for International Registration Designating Australia no. 990842 (Australian trade mark application 1284666). The application was therefore accepted for possible protection under subsection 41(5) of the Act.