Richland Express Pty Limited

This matter concerned two trade mark applications, RICHLAND EXPRESS and RICHLAND BRANDS, filed by Richland Express Pty Limited. Both applications sought registration for goods in Class 34 (articles for smokers) and services in Class 35 (retail and wholesale services). The applications were initially examined and a ground for rejection under section 41 of the *Trade Marks Act 1995* (Cth) was raised, asserting that the marks were not capable of distinguishing the applicant's goods and services from those of other traders, primarily because "RICHLAND" is a geographical location and "EXPRESS" and "BRANDS" are descriptive terms.

The delegate of the Registrar of Trade Marks was required to determine whether the trade marks RICHLAND EXPRESS and RICHLAND BRANDS were capable of distinguishing the applicant's designated goods and services from those of other persons. This involved assessing whether the marks were inherently adapted to distinguish, and if not, whether they had acquired distinctiveness through use prior to their filing dates. The delegate also needed to consider the ordinary signification of the marks and the likelihood that other traders would need to use them in the normal course of trade.

The delegate found that "RICHLAND" refers to a geographical location in the United States, and evidence indicated that this location is known for agriculture and technology, with no apparent connection to the tobacco industry. The terms "EXPRESS" and "BRANDS" were considered descriptive. Applying the principles from *Cantarella Bros Pty Limited v Modena Trading Pty Limited*, the delegate assessed the inherent distinctiveness of the marks and the extent of use. Despite substantial evidence of use by the applicant since 2007, including sales figures and marketing materials, the delegate concluded that the marks were not inherently adapted to distinguish and that the use, while extensive, was not sufficient to overcome the lack of inherent distinctiveness, particularly given the geographical signification of "RICHLAND" and the descriptive nature of "EXPRESS" and "BRANDS".

Consequently, the delegate determined that the trade marks RICHLAND EXPRESS and RICHLAND BRANDS were not capable of distinguishing the applicant's goods and services from those of other persons. Therefore, the applications for registration were rejected under section 41 of the *Trade Marks Act 1995* (Cth).