03 November, 2014
Spruson

Bendigo Cemeteries Trust [2014] ATMO 86

Bendigo Cemeteries Trust [2014] ATMO 86

Ex Parte Hearing held after Trade Marks Office maintains its objection in relation to the registrability of the trade mark ‘Memorials@home’ covering a wide range of goods and services, including funeral services in Class 45.

The Trade Marks Office objection under section 41 was described in the initial Examiner’s report as being raised as the trade mark indicated that the trader was providing ‘memorial’ services ‘at’ a person’s ‘home’.

The Hearing Officer took the view that the ordinary expression ‘memorials at home’ is likely to be required by a large number of other traders that operate in the funeral industry. As such, the trade mark lacks any inherent adaption to distinguish in respect of the funeral services in Class 45.

Further, the Hearing Officer considered that the other goods and services being provided by the applicant (printed matter, clothing, websites, etc.,) were also likely to be goods and services offered by other traders in the funeral industry. Again, this led to these goods and services also falling foul of section 41.

The applicant’s evidence fell short of convincing the Hearing Officer that the trade mark has, or would ever, become anything more than descriptive of the goods and services provided by the applicant.

The application was refused for all goods and services, apart from ‘cremation services’ (which the Hearing Officer noted could not be performed ‘at home’ and was therefore not subject to the objection).

To view the Office decision, click here.

This article is an extract from Spruson & Ferguson’s monthly summary of Australian Trade Mark Office decisions. You can view the entire month’s summary here.


KHAJAQUE KORTIAN

Principal / Solicitor / Trade Mark Attorney
Litigation Team, Trade Marks Team
Sydney, Australia

DANIEL WILSON

Associate / Trade Mark Attorney
Trade Marks Team
Sydney, Australia

 

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