Toyota Jidosha Kabushiki Kaisha

This matter concerned a trade mark application by Toyota Jidosha Kabushiki Kaisha for the words "LS430" in respect of motor cars and parts thereof. The application was examined and the examiner raised objections under section 41 of the *Trade Marks Act 1995* (Cth), asserting that the mark lacked sufficient inherent adaptation to distinguish the goods. The applicant responded by arguing that the examiner had not provided evidence to support the assertion that other traders would need to use "LS430" as a product, model, or catalogue code, and that the *Act* afforded a presumption of registrability. The matter proceeded to a hearing before a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade mark "LS430" was capable of distinguishing Toyota's goods from those of other persons, as required by section 41 of the *Act*. This involved determining the extent to which the mark was inherently adapted to distinguish and, if necessary, considering the use of the mark and other circumstances. The applicant contended that the examiner's objection was based on an unsupported generalisation and that the *Act* placed no onus on the applicant to prove distinctiveness at the examination stage, relying on case law such as *Blount Inc v Registrar of Trade Marks* and *Registrar of Trademarks v Woolworths Ltd*.

The delegate considered the criteria for inherent adaptation to distinguish, which requires assessing whether other traders would likely desire to use the mark in the ordinary course of their business without improper motive. Based on research conducted after the hearing, which revealed that "LS430" corresponded to a specific Lexus model with a 4.3-litre engine, and that other manufacturers used engine displacement in model designations, the delegate concluded that the mark was not inherently adapted to distinguish the goods. However, the delegate was unable to conclude that the mark possessed no inherent adaptation to distinguish, leading to the application of section 41(5) of the *Act*.

The delegate found that the applicant had not established that the mark, through use, distinguished its goods. The delegate noted that while the applicant invited the delegate to search for evidence of use, the applicant itself had not provided evidence. The delegate's own research indicated that "LS430" was used by Toyota to denote a specific model, with the "LS" prefix indicating a "top of the range" luxury sedan and the "430" referring to the engine displacement. The delegate also observed that other manufacturers used similar designations, such as the Mercedes S430, and that the Lincoln LS was also a model name. Consequently, the delegate determined that the trade mark "LS430" was not capable of distinguishing the applicant's goods and the application was rejected.