Trade mark application number 2024351 (16) - CO: YELLOW - in the name of Tama Group

This matter concerned an application for registration of the trade mark CO: YELLOW by Tama Group. The Registrar had initially indicated an intention to reject the application unless the specified goods were amended. The applicant agreed to the proposed amendment, and the Registrar then considered whether the amended application should proceed to registration.

The primary legal issue before the Registrar was whether the trade mark CO: YELLOW should be accepted for registration under section 33 of the *Trade Marks Act 1995* (Cth), or if there were grounds for its rejection. This involved assessing the applicant's entitlement to registration, particularly in light of section 41 of the Act, which deals with the distinctiveness of trade marks.

The Registrar reasoned that under section 33(1) of the Act, an application must be accepted unless there are grounds for rejection. In this instance, the Registrar was satisfied that the trade mark could proceed to registration under section 41(3) in relation to specific goods: "plastic materials for packaging and wrapping for agricultural use, namely, plastic films and plastic sheeting for wrapping bales of cotton, and plastic materials in sheet form for wrapping bales of cotton." This conclusion was reached after weighing evidence of the trade mark's use against its inherent capacity to distinguish the specified goods. However, the Registrar was not satisfied that the trade mark could be registered for the remaining goods originally listed, as no evidence of use had been provided for those items.

Consequently, the Registrar ordered that the trade mark CO: YELLOW may proceed to registration under section 41(3) of the Act, subject to an endorsement being added to the Register to reflect the amended specification of goods.