Trade mark application numbers 2191884 (class 35) – FLECKVIEH SIMMENTAL SOCIETY – 2191895 (class 35) – FLECKVIEH SIMMENTAL AUSTRALIA – and 2191898 (class 35) – FLECKVIEH SIMMENTAL – all in the name of Fleckvieh...

These proceedings concerned three trade mark applications filed by Fleckvieh Simmental Australia, namely application numbers 2191884, 2191895, and 2191898, all for the mark FLECKVIEH SIMMENTAL in class 35. The applications were opposed by Fleckvieh Simmental Society. The matter came before Nicholas Barbey, acting as delegate for the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade mark FLECKVIEH SIMMENTAL was capable of distinguishing the services of Fleckvieh Simmental Australia from the services of others, as required by section 41 of the *Trade Marks Act 1995* (Cth). This involved considering whether the mark was inherently adapted to distinguish or had acquired distinctiveness through use.

The delegate found that the term "Fleckvieh Simmental" is a breed name for cattle and therefore descriptive of the services offered by the applicant, which related to the breeding and sale of such cattle. No evidence of use of the mark was filed by the applicant, meaning it could not rely on acquired distinctiveness. Consequently, the delegate concluded that the trade mark applications were not capable of distinguishing the applicant's services and were therefore not registrable.

The delegate ordered that all three trade mark applications be rejected.