Re: Application number 733227 in the name of Nihon Polyolefins Kabushiki Kaisha

This matter concerns an application by Nihon Polyolefins Kabushiki Kaisha, a Japanese company, to register the trade mark J-ALLOMER for synthetic resins in Class 1. The examiner raised objections under section 41 of the *Trade Marks Act 1995* (Cth), arguing that the term "allomer" is an alternative name for polyallomer, a descriptive term likely to be needed by other traders. The examiner supported this by citing dictionary definitions and internet usage, and noted that combining a letter with a descriptive term is common in scientific fields. The application proceeded to a hearing before a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the trade mark J-ALLOMER was capable of distinguishing the applicant's goods from those of other traders, as per section 41 of the *Trade Marks Act 1995*. This involved considering whether the mark was inherently adapted to distinguish the goods and, if not sufficiently so, whether it had acquired distinctiveness through use. The delegate was guided by the principles established in *Blount Inc v The Registrar of Trade Marks* (1998) 40 IPR 498, which outlines three possible conclusions regarding a trade mark's inherent adaptability to distinguish.

The delegate reasoned that the word "allomer" is a technical term with a direct reference to synthetic resins, being an alternative name for polyallomer. Drawing on precedent such as *Eutectic Corporation v Registrar of Trade Marks* (1980) A.L.R. 211, the delegate found that "allomer" on its own was not inherently adapted to distinguish the goods. While the addition of the letter "J" provided a minor degree of inherent distinctiveness, the delegate concluded that the combination J-ALLOMER was still likely to be understood by those in the chemical and resins trades as referring to a "J" series of polyallomers, rather than as a badge of origin. Consequently, the mark fell into the third category described in *Blount Inc*, where the inherent distinctiveness is not sufficient on its own to establish capability of distinguishing.

As the applicant provided no evidence of use or other circumstances to demonstrate that the trade mark J-ALLOMER actually distinguishes their goods, the delegate applied subsection 41(5) of the *Trade Marks Act 1995*. In the absence of such evidence, the delegate rejected the application to register the trade mark.