Vectura GmbH

This decision concerns an application for an International Registration Designating Australia (IRDA) by Vectura GmbH (the Holder). The dispute centred on whether the word 'fox' was capable of distinguishing the goods for which protection was sought. The Hearing Officer, Katrina Brown, was required to determine if the IRDA should be accepted for extension of protection in Australia.

The primary legal issue before the court was whether the word 'fox', when considered in relation to the specified goods, possessed inherent distinctiveness such that it could function as a trade mark. This involved assessing the various meanings of the word 'fox', its statistical significance in the Australian population, the nature of the goods for which protection was sought, and the common practices of traders in that market.

The Hearing Officer reasoned that while 'fox' has multiple meanings, including that of an animal associated with cunning and resourcefulness, and a surname, its primary meaning in the context of the specified goods was not solely that of a surname. The goods, particularly pharmaceutical preparations for pulmonary delivery and related devices, were found to be specialised and subject to significant regulation under the Therapeutic Goods Act 1989, creating a relatively narrow market. Furthermore, evidence suggested it was not common practice for traders in this sector to use their surname as a trade mark. Considering these factors, and the presumption of registrability, the Hearing Officer concluded that the word 'fox' was inherently adapted to distinguish the specified goods.

Consequently, the Hearing Officer accepted the IRDA for extension of protection in Australia for the goods in Class 5 (pharmaceutical preparations for pulmonary delivery and for the treatment of respiratory and cardiovascular systems) and Class 10 (inhalers, nebulisers, respirators, and associated parts and fittings). The International Bureau was notified of this decision.