Smith Hayden & Co Ltd's Application

The application concerned the registration of a trade mark by Smith Hayden & Co Ltd. The Registrar of Trade Marks opposed the registration.

The primary legal issue before the Court was whether the proposed trade mark, which consisted of the word "HAYDEN'S" accompanied by a drawing of a kangaroo, was capable of distinguishing the goods of Smith Hayden & Co Ltd from the goods of other persons. This involved an assessment of whether the mark was inherently adapted to distinguish or whether it had acquired distinctiveness through use.

Kitto J. considered the evidence of use of the mark and noted that the word "HAYDEN'S" alone had been used for a considerable period. His Honour reasoned that the addition of the kangaroo device, while potentially attractive, did not necessarily imbue the mark with a capacity to distinguish the goods in the absence of evidence demonstrating that the public associated the combined mark with the applicant's goods. The legal principle applied was that a trade mark must, in fact or by its inherent nature, serve to distinguish the goods of the proprietor from those of other traders.

The application for registration was dismissed.