Kenman Kandy Australia Pty Ltd v The Registrar of Trade Marks [2001] FCA 1047

FEDERAL COURT OF AUSTRALIA

Kenman Kandy Australia Pty Ltd v The Registrar of Trade Marks [2001] FCA 1047

TRADE MARKS – Application for registration of "shape" trade mark in relation to non-medicated confectionery – Concocted mark in shape reminiscent of a bug or spider – Whether mark is not capable of distinguishing the applicant's goods from the goods of others – Whether mark is inherently adapted to distinguish the goods from those of others – Discussion of proper approach to determination of these issues in respect of shape marks, as compared with word marks. Trade Marks Act1995 ss 6, 17, 41. KENMAN KANDY AUSTRALIA PTY LIMITED v THE REGISTRAR OF TRADE MARKS N 1248 of 2000 WILCOX J 3 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1248 of 2000

BETWEEN: KENMAN KANDY AUSTRALIA PTY LTD

APPLICANT

AND: THE REGISTRAR OF TRADE MARKS

RESPONDENT

JUDGE: WILCOX J

DATE OF ORDER: 3 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant, Kenman Kandy Australia Pty Ltd, pay the costs of the respondent, the Registrar of Trade Marks. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1248 of 2000

BETWEEN: KENMAN KANDY AUSTRALIA PTY LTD

APPLICANT

AND: THE REGISTRAR OF TRADE MARKS

RESPONDENT

JUDGE: WILCOX J

DATE: 3 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

WILCOX J: 1 This is an application by Kenman Kandy Australia Pty Limited ("Kenman") challenging a decision of the Registrar of Trade Marks ("the Registrar") to reject an application for registration of a "shape" trade mark. I understand from counsel this is the first occasion upon which registrability of a shape trade mark has had to be considered by the Court.