A Test for the 'test' of Distinctiveness - The Saga Continues...
Abstract
A primary consideration prior to registering a mark for or on behalf of a client is whether it is “distinctive” as opposed to merely “descriptive”. In recent times, examiners in Australia appear to have become increasingly stringent about whether a mark is indeed “distinctive”. Take away points for practitioners: • An increased threshold for “distinctiveness” in Australia may be seen to encourage innovation as opposed to create a monopoly; • A “distinctive” mark is not the same as “well-known” mark; • Distinctiveness may arise in a registration context as well as in defensive actions.
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