Trade mark application number 2017036 (31) – Cat device - in the name of Mars Australia Pty Ltd

This matter concerned Trade Mark application number 2017036, for a "Cat device," filed by Mars Australia Pty Ltd. The application was considered by Louise Tuohy, a Hearing Officer in the Trade Marks and Designs section. The core of the dispute revolved around whether the trade mark was capable of distinguishing the applicant's goods from those of other traders.

The legal issue before the Hearing Officer was whether there were grounds under the *Trade Marks Act 1995* (Cth) to reject the application, as contemplated by section 33(1)(b) of the Act. Specifically, the Hearing Officer had to determine if the trade mark was capable of distinguishing the applicant's goods, a requirement under section 41 of the Act, and if the evidence provided was sufficient to satisfy this requirement.

The Hearing Officer reasoned that in the absence of any evidence demonstrating use or intended use of the trade mark, the information provided regarding its development was insufficient to establish its capacity to distinguish the applicant's goods from similar goods offered by other traders. Consequently, the Hearing Officer found a ground for rejection under section 41(4) of the Act. Applying section 33(3) of the Act, which mandates rejection if grounds for rejection are found, the Hearing Officer rejected the trade mark application.