Société Air France [2013] ATMO 90

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Trade Mark Application No. 1396412 (International Registration No. 1056115) in classes 16, 18, 35, 36, 37, 38 and 39 – Curved Red Stripe – in the name of Société Air France requesting protection in Australia filed on 20 November 2009 with Convention priority on 13 August 2009 (France).

The first official report rejected the mark under s 41 of the Trade Marks Act 1995 (Cth) because the trade mark is merely a “slightly stylised geometric shape” and thus incapable of distinguishing the specified goods or services, and other traders would be likely to desire to use the mark. Société Air France then requested a hearing on the matter before the Delegate of the Registrar on 21 October 2013.

Because the IRDA was filed before 15 April 2013, the old s 41, preceding the amendments made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth), applies.

The Delegate decided that despite the graduation of colour and the slight curve, the mark is not sufficiently inherently adapted to distinguish to apply s 41(3). Section 41(4) thus obliges the Delegate to consider evidence of use or other circumstances that have made the mark distinguishable within the relevant market, i.e. airline services.

The Delegate decided that despite the mark appearing with the words “Air France” on websites, brochures and magazines, the mark is not sufficiently visible for the applicant’s mooting point of the graduation of colour and curve to convince the Delegate of satisfying the use requirements under s 41(5).

The mark was therefore rejected for application under the grounds of s 41 as incapable of distinguishing the specified good or services.

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