Campbell soup’s UNCANNED not Canned

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Campbell Soup Company [2019] ATMO 84 (31 May 2019)

Campbell Soup Company (“Campbell”) applied to be heard on its Trade Mark Application No. 1887774 UNCANNED following objection by the Australian Trade Marks Office under section 41 that the mark  was not inherently adapted to distinguish the services applied for in Class 43.

The Examiner contended that the mark UNCANNED indicated that the services, being provision of information on food and food production, are about food which is not canned. The Examiner found that “un” has a well understood prefix meaning of “not” and as such the assertion of the Applicant that the trade mark was an invented word due to the absence of an entry of any versions of UNCANNED in dictionaries was not accepted by the office.

The two-step test for distinctiveness from the case of Cantarella Bros v Modena Trading 2014 HCA 48 was applied. The Hearing Officer stated that it is necessary to bear in mind the relevant goods and services as needs to be determined is the ordinary signification of the sign used in conjunction with these services; provision of information on food and food production, including via a website. The Hearing Officer was of the view that although UNCANNED has a readily apparent meaning when used in connection with goods that are foodstuffs, it is a rather unnatural term that is unlikely to be ordinarily used to describe foodstuff that are not in cans. It was found that UNCANNED has no ordinary signification when used in conjunction with information on food and food production. It assisted Campbell’s case based on the premise that search results on the internet for “uncanned services” and “uncanned information” did not return any instructive results. The Hearing Officer was satisfied that UNCANNED has no ordinary signification in respect of information to the persons who will purchase the Applicant’s services given the awkward nature of the term and the apparent absence of its use.

This article was written by Aarthi Singaravelu and Daniel Wilson.

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