Re: Trade mark application number 2080292 (classes 12, 21, 35) - Bottles of Australia in the name of Plaspro Enterprises Pty Ltd

This matter concerned an application by Plaspro Enterprises Pty Ltd for registration of the trade mark "Bottles of Australia" in classes 12, 21, and 35. The application was initially rejected by the Trade Marks Office on the ground that the mark was not capable of distinguishing the applicant's goods and services from those of other persons, pursuant to section 41 of the *Trade Marks Act 1995* (Cth). The applicant sought review of this decision before Nicholas Barbey.

The primary legal issue before the court was whether the trade mark "Bottles of Australia" was capable of distinguishing the goods and services offered by Plaspro Enterprises Pty Ltd. This required an assessment of the evidence filed by the applicant to demonstrate that the mark had, in fact, acquired distinctiveness in the minds of the relevant public. The court also considered whether an amendment to the specification of goods and services would render the mark registrable.

Nicholas Barbey found that the evidence presented by the applicant was insufficient to establish that the trade mark had acquired distinctiveness at the time of filing the application. However, the court noted that the applicant had sought to amend the specification of goods and services. Upon review of the amended specification, the court determined that the trade mark was capable of distinguishing the goods and services as amended. Consequently, the court ordered that the trade mark application be accepted.