Blake Dawson - Descriptive word trade marks and problems of evidence: the Cashcard decision

Lionel Nichols and Belinda Findlay of Blake Dawson reviews CASHCARD Trade Mark Application [2007] ATMO 70 in which the Australian Trade Marks Office (ATMO) rejected Cashcard Australia Ltd’s application to register the trade mark CASHCARD in class 9. According to Lionel Nichols and Belinda Findlay, the ATMO found that the word CASHCARD was lacking inherent capacity to distinguish the applicant’s goods and was likely to be needed by other traders to indicate the nature of their goods. The ATMO went on to reject the applicant’s submission that the mark had acquired distinctiveness, criticising the evidence supporting this conclusion as being unsatisfactory.

According to Lionel Nichols and Belinda Findlay, the case serves as a reminder to applicants that evidence of prior use must relate precisely to the mark applied for, rather than to composite or similar marks. Further, the evidence must have a highly probative value. Survey evidence must be clear, well-designed and not self-serving and trade evidence must demonstrate the importance of the mark directly with regard to consumer relations and the identification of the applicant or its goods.

Blake Dawson - Descriptive word trade marks and problems of evidence: the Cashcard decision


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