Trade mark application number 2050200 (class 9, 38, 42) – CYBERSECURE - in the name of Cybersecure Pty Ltd

This matter concerned an application by Cybersecure Pty Ltd for registration of the trade mark CYBERSECURE in classes 9, 38, and 42. The application was opposed by a third party. The hearing officer had rejected the application on the basis that the trade mark was not inherently adapted to distinguish the applicant's goods and services, and that the evidence filed in support of the application was insufficient to establish distinctiveness. The applicant sought a review of this decision.

The primary legal issue before the Court was whether the hearing officer had erred in finding that the trade mark CYBERSECURE was not inherently adapted to distinguish the applicant's goods and services within the meaning of section 41 of the *Trade Marks Act 1995* (Cth). A secondary issue was whether the evidence filed by the applicant was sufficient to overcome any deficiencies in inherent adaptability.

The Court considered the meaning of "inherently adapted to distinguish" and noted that a trade mark is inherently adapted to distinguish if it is not descriptive or generic in relation to the goods or services. The Court found that the term "CYBERSECURE" is a compound of "cyber" and "secure," both of which are directly descriptive of services related to computer security and data protection. Therefore, the trade mark was not inherently adapted to distinguish the applicant's services. Furthermore, the Court agreed with the hearing officer that the evidence provided by the applicant was insufficient to demonstrate that the trade mark had acquired distinctiveness through use.

The Court dismissed the application for review and affirmed the hearing officer's decision to reject the trade mark application.