Trade mark application number 1854716 (28) Raccoon (Shape) in the name of Emma Kruger.

This matter concerned an appeal to the Federal Court of Australia regarding the registrability of a trade mark application. The applicant, Emma Kruger, sought to register the shape of a raccoon as a trade mark for goods and services in class 28, specifically toys. The Registrar of Trade Marks had refused the application, and Ms Kruger appealed this decision.

The primary legal issue before the Court was whether the shape of a raccoon, as applied for, was capable of distinguishing Ms Kruger's goods and services from those of other traders. This involved an assessment of whether the shape was inherently adapted to distinguish, or whether it had acquired distinctiveness through use. The Court also considered the Registrar's objection that the shape was not a "sign" capable of registration under the *Trade Marks Act 1995* (Cth).

Justice Thompson considered the evidence of use and the inherent nature of the shape. He noted that the shape was a recognisable representation of a raccoon, a common animal. The Court applied the principles established in trade mark law concerning the inherent distinctiveness of shapes, particularly in the context of toys. His Honour found that the shape, while potentially attractive, was not inherently adapted to distinguish Ms Kruger's goods. Furthermore, the evidence of use did not demonstrate that the shape had acquired distinctiveness in the marketplace as a badge of origin for Ms Kruger's specific goods. The Court also addressed the argument that the shape was not a sign, finding that a three-dimensional shape could indeed function as a trade mark.

The appeal was dismissed, and the Registrar's decision to refuse the trade mark application was affirmed.