-- JonathanMo - 14 Sep 2015

'To distinguish goods or services'

A mark must be used 'in relation to goods or services'. This means that 'marks have no life of their own', and are registrable only in respect of the goods or services they are meant to distinguish. While the shape of an item can be a trade mark because of distinctive association, registration of a colour as a mark can be much more difficult to achieve. See Smith Kline and French Laboratories (Aust) Ltd v Registrar of Trade Marks [1967] HCA 42; (1967) 116 CLR 628; see also Woolworths Ltd v BP plc (No 2) [2006] FCAFC 132; (2006) 154 FCR 97; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136.

By the same token it is not possible to monopolise through trade mark registration a name in the abstract. See Re Application by New York Yacht Club (1987) 9 IPR 102.