Trade mark application number 2085415 (classes 16, 41, 44) – Clear Aligner Excellence – in the name of Clear Aligner Excellence Pty Ltd

This matter concerned trade mark application number 2085415, for the mark "Clear Aligner Excellence" in classes 16, 41, and 44, filed by Clear Aligner Excellence Pty Ltd. The decision was made by Nicholas Barbey, Hearing Officer and Delegate of the Registrar of Trade Marks.

The primary legal issue before the Hearing Officer was whether the trade mark application should be rejected on the grounds that the mark is not capable of distinguishing the applicant's goods and services, as provided for under section 41 of the *Trade Marks Act 1995* (Cth). The applicant had not filed any evidence in support of its application.

The Hearing Officer found that a ground for rejection existed under section 41 of the Act. In the absence of any evidence filed by the applicant, the Hearing Officer was satisfied on the balance of probabilities that the trade mark was not capable of distinguishing the applicant's claimed goods and services. Consequently, the Hearing Officer rejected the application pursuant to section 33(3) of the Act. The Hearing Officer also directed that if a notice of appeal was served on the Registrar of Trade Marks within one month, the disposition of the application should be in accordance with the court's direction or order.