Trade mark application number 2342654 (classes 28 & 41) – 21+3 – and – trade mark application number 2343270 (classes 28 & 41) – 21+3 (figurative) - in the name of Galaxy Gaming Inc

This matter concerned two trade mark applications, numbers 2342654 and 2343270, filed by Galaxy Gaming Inc for goods and services in classes 28 and 41. The applications were heard by Hearing Officer Timothy Brown.

The primary legal issue before the Hearing Officer was whether the trade marks were capable of distinguishing the applicant's goods and services, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved considering the inherent adaptiveness of the trade marks to distinguish, any use or intended use by the applicant, and other relevant circumstances.

The Hearing Officer found that while the trade marks possessed some inherent capacity to distinguish, this was not sufficient. Crucially, the applicant had not provided any evidence of use or intended use, nor made submissions addressing the relevant factors under section 41(4)(b). Although the applicant referred to earlier registrations in Australia and other jurisdictions, the Hearing Officer considered these insufficient to overcome the lack of evidence and the inherent weaknesses of the marks. Applying section 33(3) of the Act, the Hearing Officer was satisfied that grounds for rejection existed under section 41.

Accordingly, Hearing Officer Timothy Brown rejected both trade mark applications, numbers 2342654 and 2343270.