Trade mark application number 2460225 (class 33) –

This decision concerns an application by Daveamy Pty Ltd as trustee for McWilliam Family Brands to register the trade mark MOUNT HILL for grape-based wines in Class 33. The application was initially examined and a ground for rejection was raised under section 41(3) of the *Trade Marks Act 1995* (Cth), on the basis that MOUNT HILL is a geographical area in Western Australia and would therefore indicate that the goods originate from that location, thus not being capable of distinguishing the applicant's goods. The applicant responded with written submissions, and the matter was referred to a delegate of the Registrar of Trade Marks for a fresh consideration.

The delegate was required to determine whether the trade mark MOUNT HILL is capable of distinguishing the applicant's grape-based wines from those of other persons, as mandated by section 41(1) of the Act. This involved assessing whether the trade mark is inherently adapted to distinguish the goods and whether other traders would likely desire to use the mark in the ordinary course of trade. The delegate also considered the ordinary signification of the trade mark in Australia in relation to grape-based wines and the likelihood of future production of wine in the Mount Hill region.

In reaching the decision, the delegate applied the principles established in *Cantarella Bros Pty Limited v Modena Trading Pty Limited*, which requires first establishing the ordinary meaning of the trade mark and then considering whether other traders might legitimately desire to use it. While acknowledging that MOUNT HILL is a geographical location in Western Australia, the delegate found that, despite its existence, the ordinary signification of the trade mark to those concerned with grape-based wines would be its geographical meaning. However, the delegate was satisfied that the likelihood of other traders desiring to use MOUNT HILL in connection with grape-based wines was remote, as the area is hundreds of kilometres from recognised wine regions in Western Australia, and there was no evidence to suggest that wine could reasonably be produced there in the future. Consequently, the delegate concluded that the trade mark is inherently adapted to distinguish the applicant's goods.

Accordingly, the delegate was satisfied that there were no grounds for rejecting the application under section 41 of the Act. The application for the trade mark MOUNT HILL was therefore accepted for registration.