Thou shall not pass the Trade Mark Act if the phrase you intend on monopolising is too descriptive. Bauer Media, publisher of ‘Womans Day’ and ‘Australian Womens’ Weekly was recently reminded of this when they failed to register the phrase ‘TEST KITCHEN’ as a trade mark.
A ‘test kitchen’ is a kitchen used to develop new types of food and recipes. Bauers original claim that the phrase was solely associated with their brand name was accepted by IP Australia. However it was subsequently opposed by Pacific Magazines, publisher of ‘New Idea’ and ‘That’s Life!’.
Following a hearing it was held that the phrase was in fact too descriptive lacking any secondary meaning that would make it distinctive amongst consumers. It was not a phrase that was exclusively associated with Bauer. Therefore, in contradiction to IP Australia’s original decision, the phrase was held not to act as any sort of badge of origin. It was being used by multiple other magazines, particularly pacific magazines, to provide and sell certain goods and services for decades.
It is an important reminder of the trade mark requirement for distinctiveness not description. Kitchen enthusiasts can rest easy knowing the phrase ‘test kitchen’ will continue to be widely used when referring to the discovery of new food types.