Trade mark application number 2339182 (class 1)

This matter concerned an appeal by the applicant, Trade Mark Application No 2339182, against the decision of the Registrar of Trade Marks to refuse registration of its mark in Class 1. The applicant sought to register the mark "PROBIOTIC X" for use in relation to "live bacteria cultures for use in food and animal feed". The Registrar had refused the application on the grounds that the mark was not distinctive and was descriptive of the goods.

The primary legal issue before the Court was whether the mark "PROBIOTIC X" was capable of distinguishing the applicant's goods from those of other persons. This involved considering whether the mark was inherently adapted to distinguish the goods, or whether it had acquired distinctiveness through use. The Court also had to determine whether the mark was, in substance, descriptive of the goods for which registration was sought.

In reaching its decision, the Court considered the ordinary meaning of the word "probiotic" and its common usage in relation to food and animal feed. It noted that "probiotic" is a descriptive term referring to live microorganisms that confer a health benefit. The Court found that the addition of the letter "X" to "probiotic" did not, in itself, render the mark distinctive. It concluded that the mark was inherently adapted to describe the nature of the goods and was therefore not capable of distinguishing the applicant's goods from those of other traders. The Court applied the principles established in trade mark law concerning the requirement for a mark to be distinctive and not merely descriptive of the goods or services.

The Court dismissed the appeal and affirmed the Registrar's decision to refuse the application.