The Custom Chef Pty Ltd

The Custom Chef Pty Ltd sought to register the trade marks SHOPMYHOUSE and SHOPMYHOUSE.COM in class 35. The Registrar of Trade Marks opposed these applications, arguing that the marks were not distinctive and were descriptive of the services offered, namely online retail services for homewares and kitchenware.

The primary legal issue before the Court was whether the proposed trade marks were capable of distinguishing the applicant's goods and services from those of other traders, as required by section 41 of the *Trade Marks Act 1995* (Cth). The Registrar contended that the terms "shop," "my," and "house" were common English words that, when combined, clearly described the nature of the services, making them incapable of acquiring distinctiveness.

The Court considered the ordinary meaning of the words and their likely perception by the relevant public. It found that while the individual words were descriptive, their combination in the proposed trade marks did not, in itself, prevent them from functioning as indicators of origin. The Court noted that the applicant intended to use the marks in a way that would distinguish its services, and that the public could be educated to recognise them as trade marks. The Registrar's opposition was therefore dismissed.