Trade mark application number 2105351 (class 5) – - in the name of Amazonia IP Holdings Pty Ltd

This matter concerned an application by Amazonia IP Holdings Pty Ltd for registration of the trade mark "RAW" in class 5, which covers vitamins and dietary supplements. The application was opposed by the Registrar of Trade Marks on the grounds that the mark was not inherently adapted to distinguish the applicant's goods from those of other traders, and that it did not, in fact, distinguish the applicant's goods. The hearing officer was required to determine whether the trade mark "RAW" was capable of distinguishing the applicant's goods.

The legal issues before the court were whether the trade mark "RAW" was inherently adapted to distinguish the applicant's goods, and whether it had, in fact, acquired distinctiveness through use. The court considered the ordinary signification of the word "raw" in relation to vitamins and dietary supplements, examining dictionary definitions and evidence of how the term is used in the marketplace. The court also assessed whether other traders might legitimately wish to use the word "RAW" to describe their own products, and whether the applicant's use of the mark, particularly in conjunction with other elements and in a stylized form, was sufficient to establish it as a badge of origin.

The hearing officer reasoned that while the word "raw" can have multiple meanings, in the context of vitamins and dietary supplements, it has acquired a secondary, colloquial connotation indicating that products are naturally sourced and/or non-synthetic. This ordinary signification meant that the mark was not inherently adapted to distinguish the applicant's goods. Furthermore, the court found that the applicant's use of the mark, often in conjunction with a sun logo and other descriptive words, did not demonstrate sufficient use of "RAW" *solus* as a trade mark to establish that it had, in fact, acquired distinctiveness. The stylized presentation of the mark was also considered to have a low capacity to distinguish.

Consequently, the hearing officer was not satisfied that the trade mark "RAW" was capable of distinguishing the applicant's goods from those of other traders, either inherently or through actual use. Accordingly, the application for trade mark number 2105351 was rejected under section 33(3) of the *Trade Marks Act 1995* (Cth).