Sublime IP

Examiners rely on court cases and legal precedent in deciding whether a trade mark is capable of distinguishing goods and services. Under the Trade Marks Act, if a trademark is not capable of distinguishing the goods or services of the applicant, the trademark must be rejected.

However, one of the main criteria which is considered is whether other traders are likely, in the ordinary course of their business and without improper motive, to need to use the same or similar trade mark in relation to their own goods or services. Traders should not be granted a monopoly in words, expression or logos which other traders may legitimately need to use to describe their own goods or services.