Trade mark application number 1872858 (classes 36, 43, 44) – BRIGHTWATER - in the name of Brightwater Care Group Ltd

This matter concerned Trade Mark application number 1872858 for the mark BRIGHTWATER, filed by Brightwater Care Group Ltd. The application sought registration across classes 36, 43, and 44, relating to financial, accommodation, and healthcare services. The primary dispute revolved around objections raised by the Trade Marks Office, initially concerning a Queensland land development project and subsequently a geographical objection based on the existence of a town named Brightwaters in New South Wales. The application was heard by Mary-Ann Cooper.

The legal issues before the court were whether the Trade Mark BRIGHTWATER was likely to be taken as indicating services originating from the geographical location of Brightwaters, New South Wales, and therefore whether it should be rejected under section 41 of the *Trade Marks Act 1995* (Cth). This required an assessment of whether the mark, despite its geographical reference, possessed sufficient distinctiveness to distinguish the applicant's services.

The court considered the applicant's evidence, which demonstrated decades of operation and significant provision of care services, employing a large staff and servicing numerous clients across multiple properties. The applicant argued that the examiner had misapplied the relevant authorities, particularly the High Court's decision in *Cantarella Bros Pty Ltd v Modena Trading Pty Limited*, by undertaking an overly simplistic analysis. The applicant contended that the town of Brightwaters, New South Wales, was a small locality with no established reputation or connection to the services offered, and that the mark BRIGHTWATER, while composed of common English words, functioned as an invented word in this context, unlikely to be desired by other traders. The court also noted the applicant's submission that the mark did not directly or indirectly refer to the services and had no ordinary signification in the English language, drawing parallels to other registered geographical marks accepted for their capacity to distinguish.

Following the applicant's submissions and evidence, the examiner withdrew the initial objection. The court found that the applicant's evidence demonstrated sufficient use and distinctiveness for the services, leading to the amendment of the services and acceptance of the application.