Mark Service successfully registers Trademark under Section 41(4) for MASK CO

Mark Service acted for our client MASK CO, an established air fragrance manufacturer, in securing registration of the Trademark MASK (+Device) in circumstances where the inherent distinctiveness was raised as an issue by the Registrar of Trademarks.

Key Issues

The applied-for mark consisted of the word MASK together with a distinctive device element, used in connection with air freshening sprays and air fragrance products. During examination, concerns were raised by the Examiner under Section 41 of the Trademarks Act 1995 (Cth) as to whether the mark was capable of distinguishing our client’s goods from those of other traders.

Our Strategy

To address these objections, we prepared and filed targeted evidence of acquired distinctiveness under Section 41(4). The evidence demonstrated that, through longstanding, consistent and commercially successful use, the MASK logo had come to function as a badge of origin in the Australian marketplace. This included evidence of sustained sales, brand recognition, and continuous use of the mark in connection with air freshening sprays and air fragrance products over an extended period.

Outcome

The Registrar accepted that the Trademark had in fact acquired the capacity to distinguish our client’s goods as a result of its longstanding and successful use. On that basis, the Trademark was accepted and proceeded to registration.

This outcome underscores the importance of a strategic evidence-led approach where Trademarks face Section 41 objections. With the right material and framing, marks that might otherwise be refused can be successfully registered by demonstrating the commercial reality of how consumers recognise and rely on the brand.

If your Trademark application has received an Adverse Examination Report, please contact our Intellectual Property Lawyers at Mark Service.

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