Y3AH Pty Ltd

This matter concerns an application by Y3AH Pty Ltd for registration of the trade mark "YET ANOTHER DATING APP" in classes 9 and 45, relating to computer software, mobile phones, computer networks, games software, and various dating and social networking services. The application was examined and a ground for rejection was raised under section 41 of the *Trade Marks Act 1995* (Cth). The applicant sought to overcome this objection by providing written submissions and evidence.

The delegate of the Registrar of Trade Marks was required to determine whether the trade mark "YET ANOTHER DATING APP" was capable of distinguishing the applicant's goods and services from those of other persons, as mandated by section 41 of the Act. Specifically, the delegate had to consider whether the trade mark was inherently adapted to distinguish the goods and services, and if not sufficiently so, whether the use of the trade mark, or other circumstances, would cause it to distinguish the applicant's offerings.

The delegate applied the two-step test for distinctiveness established in *Cantarella Bros v Modena Trading*, which involves first determining the ordinary signification of the trade mark to relevant consumers and traders, and then assessing the likelihood of other traders needing to use the mark. The delegate found that the ordinary signification of "YET ANOTHER DATING APP" to consumers in Australia was simply an additional dating app among many available options, rather than a covert or skillful allusion. The delegate disagreed with the applicant's submission that the mark had a self-deprecating or pejorative connotation, concluding that any such interpretation stemmed from the applicant's perception of dating apps themselves, rather than an inherent quality of the trade mark.

Consequently, the delegate determined that the trade mark was not inherently adapted to distinguish the applicant's goods and services, and the evidence of use provided was insufficient to establish that it did in fact distinguish them. Therefore, the application for registration of the trade mark was rejected.