Trade mark application number 2034004 (36) – - in the name of QWB Residential Precinct Operations Pty Ltd ATF QWB Residential Precinct Operations Trust

The applicant, QWB Residential Precinct Operations Pty Ltd ATF QWB Residential Precinct Operations Trust, sought to have a trade mark application, number 2034004, reconsidered after it was rejected by the Trade Marks Office. The dispute concerned the grounds for rejection under section 41(4) of the *Trade Marks Act 1995* (Cth), which relates to the distinctiveness of a trade mark. The matter was heard by Bianca Irgang.

The primary legal issue before the delegate was whether the applicant had provided sufficient evidence to demonstrate that its trade mark had acquired distinctiveness in the minds of the relevant public through use, thereby overcoming the ground for rejection under section 41(4). This required an assessment of the nature and extent of the use of the trade mark and its impact on consumer perception.

The delegate found that the evidence submitted by the applicant was insufficient to establish that the trade mark had acquired distinctiveness. The delegate applied the principles that mere use is not enough; the use must be such that the public associates the mark with the applicant's goods or services. Without evidence demonstrating a significant level of public recognition and association, the application could not proceed on the basis of acquired distinctiveness.

Consequently, the delegate refused to withdraw the rejection and the trade mark application was rejected.