Vinzero Pty Ltd

This decision concerns an application by Vinzero Pty Ltd for registration of the trade mark "VINZERO" in relation to a range of non-alcoholic beverages, including de-alcoholised wines, fruit nectars, and non-alcoholic beer. The application was examined under the *Trade Marks Act 1995* (Cth), and the delegate of the Registrar of Trade Marks was required to determine whether the trade mark was capable of distinguishing the applicant's goods from those of other persons, as stipulated by section 41 of the Act.

The primary legal issue before the delegate was whether the trade mark "VINZERO" was inherently adapted to distinguish the designated goods, or whether it would be likely to distinguish them through use. Specifically, the delegate had to consider if the mark was descriptive or generic in relation to non-alcoholic wines and beverages, such that other traders might legitimately wish to use it to describe their own similar products. This involved assessing the ordinary signification of the words "VIN" and "ZERO" in the context of the specified goods and the likelihood of other traders desiring to use the mark.

The delegate reasoned that while the applicant argued for the distinctiveness of the composite mark, the individual components "VIN" and "ZERO" had clear meanings relevant to the designated goods. The delegate found that "VIN," derived from French, is understood in Australia to refer to wine, particularly when used in phrases found in dictionaries. The word "ZERO" is plainly understood to mean "naught or nothing." In the context of non-alcoholic beverages, the delegate concluded that the combined term "VINZERO" would be readily understood by Australian consumers as signifying "non-alcoholic wine." Applying the principles from *Cantarella Bros Pty Limited v Modena Trading Pty Limited*, the delegate determined that the mark was to some extent inherently adapted to distinguish, but not sufficiently so, and that other traders might legitimately desire to use the mark to indicate that their products are non-alcoholic wine. As no evidence of use had been filed by the applicant, the delegate found that the mark did not and would not distinguish the designated goods as being those of the applicant.

Consequently, the delegate was satisfied that a ground for rejection existed under section 41 of the *Trade Marks Act 1995*. The application for the trade mark "VINZERO" was therefore rejected.