Trade mark application number 2111103 (Classes 38 and 41) – CLOUDBET- in the name of Game Theory Soapbox Limited.

This matter concerns trade mark application number 2111103 for the mark CLOUDBET, filed by Game Theory Soapbox Limited, in Classes 38 and 41. The application was initially rejected under section 41 of the *Trade Marks Act 1995* (Cth). The applicant requested a hearing, and the decision was made by Blake Knowles, a delegate of the Registrar.

The primary legal issue before the delegate was whether the trade mark CLOUDBET was capable of distinguishing the applicant's services from those of other traders, as required by section 41 of the Act. This involved assessing the trade mark's inherent adaptation to distinguish the services and, if necessary, considering whether it had in fact distinguished the services through use.

In determining the inherent adaptation of the trade mark, the delegate applied the principles established in *Clark Equipment Co v Registrar of Trade Marks*, which require consideration of whether other traders are likely to desire to use the same or a similar mark in the ordinary course of their business without improper motive. The delegate considered evidence filed by the applicant, including Google search results and website access data, which indicated that the term CLOUDBET was primarily associated with the applicant's online gaming website. Having regard to the level of inherent adaptation to distinguish, the delegate was not satisfied that the trade mark was incapable of distinguishing the applicant's services.

Consequently, the delegate withdrew the ground for rejection raised under section 41. As there were no other grounds for rejection and the application was otherwise in accordance with the Act, the delegate accepted the application for registration.