Re: Opposition by LD&D Australia Pty Ltd to registration of trade mark application 1751238 (29) True A2 filed in the name of The a2 Milk Company Limited

This matter concerned an opposition by LD&D Australia Pty Ltd (the Opponent) to the trade mark application 1751238 (29) True A2, filed in the name of The a2 Milk Company Limited (the Applicant). The opposition was heard by Nicholas Smith, a delegate of the Registrar of Trade Marks. The core of the dispute revolved around the Applicant's proposed registration of the mark "True A2" for milk products.

The legal issue before the delegate was whether the trade mark application should be refused registration under section 41 of the *Trade Marks Act 1995* (Cth). This section concerns the distinctiveness of a trade mark, specifically whether the mark is capable of distinguishing the applicant's goods or services from those of other traders. The Opponent contended that the mark was not inherently adapted to distinguish and had not acquired distinctiveness.

The delegate considered evidence regarding the meaning of the word "true" and the term "A2 Milk," noting that "true" can mean "real or genuine" and that "A2 Milk" refers to milk containing only A2 beta-casein proteins. Evidence was presented showing that other dairy producers use "true" in descriptive ways (e.g., "true cultured yoghurt") and that the term "A2" is widely used in the dairy industry to denote milk with specific protein content. The Opponent also demonstrated its own use of similar terms like "pure" and "real" and its own labelling of products as "Naturally contains A2 protein" since mid-2014. The delegate determined that the trade mark "True A2" had limited inherent adaptability to distinguish the Applicant's goods. Taking into account the other circumstances, including the manner in which the trade mark had been used in Australia, the delegate was satisfied that the mark did not and would not distinguish the Applicant's goods from those of other traders.

Consequently, the delegate found that the ground of opposition under section 41 of the Act had been established and, as a delegate of the Registrar, refused to register the trade mark. The Opponent was awarded costs against the Applicant.