Re Trade Mark Application number 1932928 (6, 8, 9, 21, 25) – WORKWEAR PROTECTIVE CLOTHING (Figurative) - in the name of Aldi Foods Pty Ltd

This matter concerned an application by Aldi Foods Pty Ltd for registration of a figurative trade mark comprising the words "WORKWEAR PROTECTIVE CLOTHING" along with a graphic element, for goods in classes 6, 8, 9, 21, and 25. The application was opposed by a third party, and the hearing officer had refused to grant the application. Aldi Foods Pty Ltd sought a review of this decision before Nicholas Smith.

The primary legal issue before the court was whether the trade mark application should be allowed to proceed, specifically considering whether the mark was sufficiently inherently adapted to distinguish the designated goods, and whether there was sufficient evidence of use to overcome any deficiencies. The court was required to consider the provisions of the *Trade Marks Act 1995* (Cth), including section 41, in determining the registrability of the mark.

Nicholas Smith found that the trade mark was not sufficiently inherently adapted to distinguish the designated goods. The words "WORKWEAR PROTECTIVE CLOTHING" were considered descriptive of the goods themselves, and the figurative elements did not sufficiently elevate the mark beyond mere description. Furthermore, the court noted a lack of evidence demonstrating that the mark had acquired distinctiveness through use in the Australian market. Consequently, the application was rejected.