Rodney Gibson

This matter concerned an application to register a trade mark for the shape of a transportable building, known as the FORMAS building. The applicant, Rodney Gibson, sought to register the trade mark, which was described as having a rectangular central portion with two roof sections extending upwards from the centre, creating a "butterfly" shape. The Registrar of Trade Marks, represented by Iain Thompson, heard arguments from the applicant's representatives regarding the grounds for rejection of the application.

The primary legal issue before the delegate of the Registrar was whether the shape of the FORMAS building was capable of functioning as a trade mark, specifically whether it possessed distinctiveness. The delegate was required to determine if the shape, as applied for, was inherently capable of distinguishing the applicant's goods from those of other traders, or if it had acquired distinctiveness through use in the Australian market.

The delegate considered evidence detailing the unique and eye-catching appearance of the FORMAS building, noting its distinctive "butterfly" roof design. Evidence was presented demonstrating that the building had been actively promoted nationally since at least December 2005, and that its unique shape was readily identified by consumers. The delegate was provided with examples of consumer confusion arising from the appearance of a similar product offered by another company, Transformable Homes, which indicated that the shape was indeed a recognisable identifier of the applicant's product. This confusion, evidenced by a trade publication's apology and subsequent editorial, suggested that the shape had acquired a degree of distinctiveness in the marketplace.