Re Trade Mark application number 1699854 (5, 40, 42) - Cell Therapies- in the name of Cell Therapies Pty Ltd

This matter concerned an application by Cell Therapies Pty Ltd to register the trade mark CELL THERAPIES in classes 5, 40, and 42. The delegate of the Registrar of Trade Marks was required to determine whether the trade mark was inherently adapted to distinguish the designated services, or if sufficient evidence of use had been provided to establish distinctiveness.

The primary legal issue was whether the trade mark CELL THERAPIES was registrable under section 41 of the *Trade Marks Act 1995* (Cth). This involved assessing whether the mark was inherently adapted to distinguish the services or had acquired distinctiveness through use. The delegate also considered the Registrar's discretion to offer amendments to an application where grounds for rejection exist for only some of the designated goods or services.

The delegate found that the evidence of use was insufficient to persuade him that the trade mark had achieved distinctiveness in respect of most of the designated services. While the mark might have been registrable for "pesticides; herbicides; fungicides and other agrochemicals in this class," the applicant had not provided evidence of use or intention to use the mark for these specific goods. Applying the principle that an application fails as a whole if it fails in one respect, and noting the applicant had not sought an amendment to limit the application, the delegate rejected the application in its entirety under section 41 of the Act.