Sustainable Living Fabrics Pty Ltd v Instyle Contract Textiles Pty Ltd

This matter concerned a trade mark opposition heard by Michael Kirov, acting as a delegate of the Registrar of Trade Marks. The applicant, Sustainable Living Fabrics Pty Ltd, sought to register the trade mark "FARM TO FABRIC" for various textile-related services. The opponent, Instyle Contract Textiles Pty Ltd, opposed this registration.

The primary legal issues before the delegate were whether the trade mark "FARM TO FABRIC" was inherently adapted to distinguish the applicant's services from those of other traders, and if not, whether the applicant had established grounds for registration under sections 41(5) or 41(6) of the relevant Act, which deal with distinctiveness acquired through use or other circumstances. The delegate also had to consider the extent to which the grounds of opposition had been established in deciding whether to refuse or register the trade mark.

The delegate found that the opponent's evidence established that "FARM TO FABRIC" was a known phrase within the textile industry, with a transparently descriptive meaning referring to the supply chain for wool and other textiles. Consequently, the delegate considered the phrase to be a normal description for the services in question and not inherently adapted to distinguish them. The delegate was not satisfied that the applicant had demonstrated sufficient use or other circumstances, such as the existence of similar registered marks, to warrant registration under sections 41(5) or 41(6).

Accordingly, the delegate refused to register the trade mark application unless it was restricted to "Textile and textile goods including fabric, upholstery, screen, workstation and panel fabrics" in Class 24 within one month. The delegate also ordered costs against the applicant in favour of the opponent, noting the opponent's persuasive evidence despite their non-appearance at the hearing.