Registrar of Trade Marks v Muller [1980] HCA 35

High Court of Australia Stephen, Mason, Murphy, Aickin and Wilson JJ. Registrar of Trade Marks v Muller [1980] HCA 35

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 9 Stephen, Mason, Murphy, Aickin and Wilson JJ.

This is an appeal pursuant to a grant by this Court of special leave from a judgment of the Supreme Court of Victoria (Fullagar J.) allowing an appeal from the refusal of the Registrar of Trade Marks to register as a trade mark the word " less " in respect of "pharmaceutical products".

Registration was sought in Pt A of the register upon the ground that the word " less " fell within s. 24 (1) (d) of the Trade Marks Act 1955, as amended ("the Act").

Section 24 (1) (d) is in the following terms:

A trade mark is registrable in Part A of the Register if it contains or consists of—

(d) a word not having direct reference to the character or quality of the goods in respect of which registration is sought and not being, according to its ordinary meaning, a geographical name or a surname.

The Registrar rejected the application. First, he was of the opinion that "in respect of some preparations the mark less would indicate to possible purchasers that the product contains less of some particular ingredient or that less of that material is required to achieve an effective result for the purpose required. We think that more likely to be the impression if the preparation is known to contain ingredients which in excess can be harmful or if the preparation in normal dosage has undesirable side effects".

On the other hand, Fullagar J. felt that the word " less " carried no clear meaning at all and thus could not refer directly to the character or quality of any substance.