Trade mark application number 1955965 (Class 30) – Victoria Coffee with device - in the name of Cantarella Bros Pty Ltd.

This matter concerned a trade mark application, number 1955965, for "Victoria Coffee with device" in Class 30, filed by Cantarella Bros Pty Ltd. The application was heard by a delegate of the Registrar of Trade Marks, Blake Knowles.

The primary legal issue before the delegate was whether the trade mark was capable of distinguishing the applicant's goods from those of other traders, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved assessing the trade mark's inherent adaptation to distinguish and, if that was insufficient, considering whether it had in fact distinguished the goods by the relevant date through its use.

The delegate reasoned that section 41 mandates rejection if a trade mark is not capable of distinguishing the applicant's goods. The assessment begins with the trade mark's inherent adaptation to distinguish. If this is insufficient, the delegate must then consider whether the trade mark has acquired distinctiveness through use. The applicant provided evidence of extensive use of the VITTORIA brand and various composite marks, including the "Vittoria Composite Mark," on a range of products and marketing materials. However, the delegate was satisfied that the trade mark in question was not capable of distinguishing the applicant's goods.

Consequently, under section 33(3)(b) of the *Trade Marks Act 1995* (Cth), having been satisfied that a ground for rejection existed and that the applicant had been given an opportunity to be heard, the delegate rejected the application for all goods.