Trade mark application number 2097895 (class 41) – SNOWFEST – in the name of Greater Dandenong City Council

This matter concerned a trade mark application, number 2097895, for the mark SNOWFEST in class 41, filed by the Greater Dandenong City Council. The application was rejected by the Delegate of the Registrar of Trade Marks.

The legal issue before the Delegate was whether the trade mark SNOWFEST was capable of distinguishing the services in class 41, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved considering both the inherent adaptability of the mark to distinguish and the evidence of use filed by the applicant.

The Delegate found that while the mark SNOWFEST possessed a limited degree of inherent adaptability to distinguish the services, this was not sufficient. The evidence of use was also found to be insufficient. A significant portion of the evidence demonstrated use of "SPRINGVALE SNOW FEST" or "SPRINGVALE SNOWFEST", and the Delegate did not accept the applicant's submission that the addition of "SPRINGVALE" did not substantially affect the identity of the trade mark for the purposes of section 7(1) of the Act, distinguishing the present case from *Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd*.

Consequently, the Delegate was satisfied that there was a ground for rejecting the application under section 41(4) of the Act and, pursuant to section 33(3) of the Act, rejected trade mark application number 2097895. The Delegate directed that the disposition of the application be in accordance with any court direction or order if a notice of appeal was served within one month.