Robin Noel Adcock

This matter concerns a trade mark application by Robin Noel Adcock for the shape of a traffic barrier. An examiner objected to the application under section 41(2) of the *Trade Marks Act 1995* (Cth), asserting that the shape mark lacked inherent adaptation to distinguish the applicant's goods from those of other traders. The applicant requested a hearing, which was conducted by a delegate of the Registrar of Trade Marks.

The delegate was required to determine whether the shape of the traffic barrier was capable of distinguishing the applicant's goods. This involved considering the provisions of section 41 of the Act, particularly in relation to shape marks, and assessing whether the mark possessed sufficient inherent distinctiveness or had acquired distinctiveness through use. The delegate also had to consider the implications of prior case law and legislative amendments concerning the registrability of functional shapes.

The delegate reasoned that while the *Trade Marks Act 1995* does not contain specific prohibitions against registering functional shapes as found in earlier legislation or UK law, such considerations are relevant to the assessment of a mark's capability to distinguish under section 41. Drawing on case law, including *Philips v Remington* and observations from UK decisions, the delegate considered whether competitors would legitimately wish to use a similar shape. The delegate found that the shape of the traffic barrier was entirely functional, serving obvious purposes such as accommodating forklift tines and interlocking with other elements to create a continuous barrier. The delegate concluded that the shape lacked inherent adaptation to distinguish the applicant's goods. Consequently, the application could only succeed if the applicant demonstrated acquired distinctiveness under section 41(6) of the Act.

The delegate found that at the filing date, the specific shape applied for had not been in extensive use, and therefore, the applicant had not established that it actually distinguished the goods as being of the applicant's manufacture. Accordingly, the delegate rejected the trade mark application.