Societe Anonyme des Eaux Minerales d'Evian v The Yogurt Co Pty Ltd

Societe Anonyme des Eaux Minerales d'Evian (the applicant) sought to register the trade mark "YOGURT CO" in class 29 of the Nice Classification, which covers dairy products. The respondent, The Yogurt Co Pty Ltd, opposed this application on the grounds that the proposed mark was not distinctive and was descriptive of the goods for which registration was sought. The matter came before the Registrar of Trade Marks, who dismissed the opposition. The respondent appealed this decision to the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the trade mark "YOGURT CO" was capable of distinguishing the applicant's goods from those of other traders, as required by section 41 of the *Trade Marks Act 1995* (Cth). The respondent argued that the term "YOGURT" is a generic descriptor for a type of dairy product and that adding "CO" would not render the mark distinctive. The applicant contended that the combination of "YOGURT" and "CO" was sufficiently arbitrary and capable of functioning as a trade mark.

Justice Iain Thompson considered the evidence and submissions, applying the principles of trade mark law concerning descriptiveness and distinctiveness. His Honour noted that the term "yogurt" is widely understood as a generic term for a dairy product. The addition of "CO" was found to be insufficient to imbue the mark with the necessary distinctiveness to distinguish the applicant's goods. The court reasoned that consumers would likely perceive "YOGURT CO" as referring to a company that produces or sells yogurt, rather than as a badge of origin for specific goods.

The appeal was allowed, and the Registrar's decision was set aside. The court ordered that the application for registration of the trade mark "YOGURT CO" be refused.