An inherently non-distinctive trade mark can be protected by a trade mark registration, if at the priority date, it had in fact become distinctive of the goods or services claimed by the application for registration through use of the mark by the registered owner.
In Henley Constructions Pty Ltd v Henley Arch Pty Ltd, the validity of a trade mark registration for HENLEY in respect of building and construction services was upheld by the Full Federal Court despite “Henley” being a common surname and a geographical location.
The decision provides a useful reminder of the principles to be applied when considering acquired distinctiveness.
Read the full article here: ‘Henley Constructions v Henley Arch — how does a trade mark acquire distinctiveness?’ (2023) 36(2) IPLB 22