Trade mark application number 2104364 (class 35) – CURVACEOUS FOR WOMEN WITH CURVES - in the name of SJT Enterprises Pty Ltd.

This matter concerned an appeal by SJT Enterprises Pty Ltd against the Registrar of Trade Marks' decision to refuse its application for the trade mark CURVACEOUS FOR WOMEN WITH CURVES in class 35. The application was initially rejected on the grounds that the mark was not inherently adapted to distinguish the applicant's services from those of other persons, pursuant to section 41(4) of the *Trade Marks Act 1995* (Cth). The appeal was heard by Nicole Worth.

The primary legal issue before the Court was whether the trade mark CURVACEOUS FOR WOMEN WITH CURVES possessed sufficient inherent distinctiveness to warrant registration, or alternatively, whether evidence of use of the mark in combination with other elements could overcome any lack of inherent distinctiveness. The Court was required to consider the application of section 41(4) of the *Trade Marks Act 1995* (Cth) in the context of the specific trade mark and the services it sought to cover.

The Court found that while the phrase "CURVACEOUS FOR WOMEN WITH CURVES" might have descriptive elements, its use in combination with other distinguishing features, such as the applicant's trading name or logo, could render it distinctive in practice. The Court applied the principle that a trade mark does not need to be inherently distinctive if it can be shown to have acquired distinctiveness through use. In this instance, the Court determined that the applicant had provided sufficient evidence to demonstrate that the mark, when used in conjunction with other elements, was capable of distinguishing their services. Consequently, the Court allowed the appeal.