Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks(includes corrigendum dated 18 September 2002)

(2002) 122 FCR 494; [2002] FCAFC 273

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Interrogate

Catchwords

1. Intellectual Property
2. › Trade Marks
3. › Registration
4. › Shape marks
5. › Three-dimensional shape of goods
6. › Whether shape inherently adapted to distinguish applicant's goods from goods of other traders
7. › Whether concocted shape of confectionery capable of registration
8. › Trade Marks Act 1995 (Cth), ss 6, 17, 41(2), 41(3)
1. Intellectual Property
2. › Trade Marks
3. › Registration
4. › Shape marks
5. › Whether trade mark must be separate from goods
6. › Whether shape of whole of goods can function as trade mark
7. › Trade Marks Act 1995 (Cth), ss 6, 7(4), 17
1. Intellectual Property
2. › Trade Marks
3. › Registration
4. › Leave to appeal
5. › Threshold for grant of leave under s 195(2)
6. › Whether 'clear prima facie error' required in all cases
7. › Trade Marks Act 1995 (Cth), s 195(2)
1. Intellectual Property
2. › Trade Marks
3. › Registration
4. › Presumption of registrability
5. › Onus on Registrar to be satisfied of grounds for rejection
6. › Trade Marks Act 1995 (Cth), s 33

Quick Take

Three-dimensional shape marks may be inherently adapted to distinguish if they are concocted or invented shapes used as the whole shape of goods, provided they are not functional, not descriptive, and not shapes other traders would legitimately wish to use; the 'clear prima facie error' threshold for leave to appeal under s 195(2) does not apply to all categories of trade mark decisions.