Trade mark application number 1977977 (class 14) – BARTON - in the name of NATOWatchBands.com, LLC.

This matter concerned a trade mark application, number 1977977, for the mark BARTON in class 14, filed by NATOWatchBands.com, LLC. The application was opposed by a third party, and the delegate of the Registrar of Trade Marks had refused the application under section 41 of the *Trade Marks Act 1995* (Cth) on the grounds that the mark was a geographical name and a surname, and therefore not inherently adapted to distinguish the applicant's goods. The applicant sought review of this decision before the Federal Court of Australia.

The primary legal issue before the Court was whether the trade mark BARTON was, to some extent, inherently adapted to distinguish the applicant's goods, specifically watch bands and related accessories. This required an assessment of the mark's distinctiveness in light of its potential as a geographical name and a surname, and whether any use of the mark had occurred that would render it capable of distinguishing the applicant's goods.

The Court found that while BARTON could be a surname and a geographical name, it was also to some extent inherently adapted to distinguish the applicant's goods. Crucially, the Court considered evidence of use of the mark, which demonstrated that it had acquired distinctiveness for certain goods. The applicant also proposed amendments to the specification of goods, which the Court accepted. Consequently, the Court determined that the application should be accepted.