-- JonathanMo - 14 Sep 2015
Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:
Requirements for registration
A mark must be 'distinctive' within the terms of section 41 of the TMA, that is, it must be capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered from the goods or services of other persons. In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar of Trade Marks must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons. Section 41(4) and (5) of the TMA then sets out some tests for the Registrar of Trade Marks to use in determining whether the mark is 'inherently adapted to distinguish' the goods or services. Section 41(6) of the TMA provides allowance for circumstances in which the mark may not be inherently adapted, by the application of the following test: (a) if the applicant establishes that, because of the extent to which the applicant has used the mark before the filing date in respect of the application, it does distinguish the goods or services as being those of the applicant - the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
(b) in any other case - the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.
Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:
(a) the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or
(b) the time of production of goods or the rendering of services.
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