Trade mark application number 1887774 (43) UNCANNED - in the name of Campbell Soup Company

The dispute concerned an application by Campbell Soup Company for registration of the trade mark UNCANNED for goods in class 29, specifically "soups, broths, stocks, and preparations for making soups, broths and stocks". The application was opposed by Simplot Australia Pty Ltd, which argued that the mark was not distinctive and was descriptive of the goods. The matter came before the Registrar of Trade Marks, and subsequently, an appeal was lodged with the Federal Court of Australia.

The primary legal issue before the Court was whether the trade mark UNCANNED was capable of distinguishing the applicant's goods from those of other traders, as required by section 41(1) of the *Trade Marks Act 1995* (Cth). This involved determining whether the term "uncanned" was inherently adapted to distinguish the goods or whether it had acquired distinctiveness through use. The Court also considered whether the mark was, in fact, descriptive of the goods, which would render it incapable of registration under section 41(2) of the Act.

Justice Wilson reasoned that the term "uncanned" directly described a characteristic of the goods, namely that they were not preserved in a can. He found that while the applicant might use the mark in a way that suggests a particular quality or origin, the ordinary meaning of the word in relation to soups and broths was descriptive. The Court applied the principle that a mark which is merely descriptive of the goods or services for which it is sought to be registered cannot be registered unless it has acquired distinctiveness through extensive use. In this instance, the Court concluded that the evidence of use did not demonstrate that the mark had acquired the necessary distinctiveness to overcome its descriptive nature.

The appeal was dismissed, and the trade mark application was refused.