Bauer Consumer Media’s trade mark application for TEST KITCHEN was opposed by Pacific Magazines on grounds under sections 41 and 58A.
Both parties agreed that TEST KITCHEN has a common English meaning; a kitchen where recipes, etc., may be tested. However, Bauer’s application covered publications and cooking instruction services (Classes 16 and 41) and not physical kitchens. The dispute then, under section 41, was wether TEST KITCHEN was an allusive reference to Bauer’s goods and services or something more descriptive.
Pacific Magazine led evidence that the term ‘test kitchen’ is commonly and widely used in relation to the above mentioned common meaning, including by those within the publishing industry. As such, it was a term that other traders would have a legitimate desire to use in relation to the same goods/services as Bauer’s application.
Having established that the trade mark failed the prima facie distinctiveness test, the Hearing Officer turned to whether Bauer had made sufficient use of its trade mark to allow for acceptance under sections 41(5) or 41(6).
On Bauer’s evidence of use, the Hearing Officer agreed with Pacific Magazines submission that the evidence led was; descriptive use, use as part of a logo that included the WOMEN’S WEEKLY house branding, and never actively promoted ‘as a trade mark’.
The Hearing Officer agreed with Pacific Magazine’s submissions on the evidence of use and refused registration of the TEST KITCHEN trade mark under section 41.
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.
Litigation Team, Trade Marks Team
Trade Marks Team