Saint-Gobain Glass France

This matter concerned an appeal against the rejection of an International Registration Designating Australia (IRDA) for a trade mark. The applicant, represented by AJ Park Intellectual Property, sought registration for a mark comprising a circle with a line through it, which the examiner considered to be the letter "Q". The dispute centred on whether this mark was sufficiently inherently adapted to distinguish the designated goods and services from those of other traders, as required by subsection 41(5) of the *Trade Marks Act*.

The primary legal issue before the court was to determine whether the trade mark, as depicted, was inherently adapted to distinguish the applicant's goods and services. The examiner had rejected the application on the grounds that the mark was merely the letter "Q", which is commonly used as an initial or abbreviation and therefore not inherently distinctive. The applicant contended that the mark was not simply "Q" but a device with specific features, including negative space, that made it unusual and distinctive, and that it would not be automatically perceived by consumers as the letter "Q".

The court considered the provisions of section 41 of the *Trade Marks Act*, referencing the explanation provided by Branson J in *Blount Inc v Registrar of Trade Marks*. Section 41(3) requires the Registrar to take into account the extent to which a trade mark is inherently adapted to distinguish the designated goods or services. If the Registrar is unable to conclude that the mark is inherently adapted to distinguish, or is uncertain on that basis alone, further considerations under subsections 41(5) or 41(6) are engaged. The court noted that the applicant's submissions reiterated their argument that the mark, when viewed as a whole, possessed distinctive features beyond simply representing the letter "Q". The court also observed that another trade mark submitted by the applicant appeared to confirm a resemblance to the letter "Q".