Raymond Hoser [2017] ATMO 87


Hoser applied to register his REPTILE MAN trade mark in connection with services in Classes 41 and 44.  The application was objected to by the Trade Marks Office on the basis that the trade mark was too descriptive for registration and, given its descriptiveness, would likely be needed by other traders.  Hoser applied to be heard on the matter.

Hoser’s initial arguments that the trade mark was capable of distinguishing were dismissed by the Hearing Officer, who noted:

…the Trade Mark consists of a known phrase within this particular industry, which is not allusive, and is unambiguous in meaning. I find that other persons would recognize the expression as the examiner has done, that is, these are demonstration, handling and removal services conducted by a man specializing in reptiles.

Evidence of use was led by Hoser to attempt to obtain acceptance of his trade mark despite the objection.  This evidence was seen by the Hearing Officer as largely not ‘use of the Trade Mark as a trade mark’ and, in fact, was indicative of the descriptive nature of the expression ‘REPTILE MAN’.  Overall, the evidence was not sufficient to overcome the descriptive nature of the trade mark.

The applicant has been refused registration.

To view the Office decision, click here.

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