Re: Opposition by Redlynch Pharmacy Pty Ltd to registration of trade mark application number 1849618 (35,44) - wholehealth - in the name of CPG (IP) Pty Ltd as Trustee For The CPG (IP) Unit Trust

This matter concerned an opposition by Redlynch Pharmacy Pty Ltd to the registration of the trade mark application number 1849618, "wholehealth", in the name of CPG (IP) Pty Ltd as Trustee For The CPG (IP) Unit Trust. The opposition was heard by Debrett Lyons, a Hearing Officer.

The primary legal issue before the Hearing Officer was whether the trade mark "wholehealth" was capable of distinguishing the services for which it was sought to be registered from the services of other persons, pursuant to section 41 of the *Trade Marks Act 1995* (Cth). The opponent also pressed grounds under sections 42(b), 59, 62, and 62A of the Act, but the Hearing Officer was able to determine the matter solely on the basis of section 41. The relevant date for assessing this ground was the filing date of the application.

The Hearing Officer reasoned that section 41 requires a trade mark to be capable of distinguishing the applicant's services from those of other traders. This is assessed by considering whether the mark is inherently adapted to distinguish and, if not, whether use has led to actual distinctiveness. In this instance, the Hearing Officer found that the trade mark was not capable of distinguishing the services and therefore failed to meet the requirements of section 41. The standard of proof applied was the ordinary civil standard based on the balance of probabilities.

As a ground of opposition was established under section 41, the Hearing Officer decided to refuse the registration of the trade mark. The opponent was also awarded costs against the applicant on the official scale.