Re: Trade mark applications number 711744 and 711745 in the name of

This decision concerns two trade mark applications, numbers 711744 and 711745, filed by Multix Pty Ltd. The applications sought registration of trade marks consisting of the colour red as the predominant background colour on packaging for aluminium foil and related domestic utensils. Grounds for rejection were raised under section 41 of the *Trade Marks Act 1995* (the Act) on the basis that other traders would likely wish to use similar colouring for their packaging. The applicant provided evidence of use, including market research reports, to demonstrate that the colour red had become distinctive of their goods.

The primary legal issue before the delegate was whether the trade marks, as represented by colour descriptions and later pictorial representations, were capable of distinguishing the applicant's goods. This required an assessment under section 41 of the Act, specifically considering whether the marks were inherently adapted to distinguish the goods, or if distinctiveness had been acquired through use. The delegate had to determine whether the applications fell under subsection 41(5) or the more stringent requirements of subsection 41(6), which mandates proof of actual distinctiveness through extensive use if a mark lacks inherent adaptability.

The delegate reasoned that the colour red, when used as a predominant background on packaging for aluminium foil and similar goods, is not inherently adapted to distinguish the applicant's products. This conclusion was based on the principle that colours are often used functionally to attract consumer attention, and it is likely that other traders would wish to use red for this purpose. The delegate found that the evidence of use, including sales figures, advertising expenditure, and market research, was insufficient to establish that the red colouring had, in fact, come to denote the applicant's goods as a badge of origin at the filing date. The market research, in particular, was found to be flawed and did not demonstrate the required level of consumer association with the applicant's brand.

Consequently, the delegate concluded that the trade marks were not to any extent inherently adapted to distinguish the applicant's designated goods and therefore fell under the provisions of subsection 41(6) of the Act. As the applicant failed to establish that the trade marks, by reason of their use, did in fact distinguish the designated goods as being those of the applicant, the delegate rejected both applications numbers 711744 and 711745.