IP SERVICE INTERNATIONAL overcomes section 41 objection to "No.2" trade mark in Australia

A playful brand name, a distinctiveness objection and a successful outcome. IP SERVICE INTERNATIONAL has secured acceptance of the "No.2" word trade mark application in Classes 3 and 5 for FLUSSHD PTY LTD, following an objection raised by IP Australia under section 41 of the Trade Marks Act 1995.

For our client, an Australian luxury toilet perfume and bathroom deodorising brand, the result marks an important step towards securing registered protection for the "No.2" word mark, alongside its composite logo.

Key Issues

IP Australia initially objected to the registration of "No.2" under section 41 of the Trade Marks Act 1995, on the basis that "No.2" could be understood as referring to the second product in a numbered range or collection, rather than identifying the goods of a particular trader.

The challenge was to demonstrate that "No.2" was capable of distinguishing the Applicant's fragrances, air fresheners and bathroom deodorising products from those of other businesses.

Our Strategy

IP SERVICE INTERNATIONAL challenged the Examiner's interpretation, arguing that "No.2" was an indirect and humorous reference to the familiar expression "number two". Although the name cleverly alluded to the bathroom context, it did not directly describe the products.

Our experts Quentin Dequiret and Max Steinhausen prepared evidence of the brand's commercial use in Australia since 2021, including sales, advertising, retail distribution and media coverage. We also demonstrated that "No.2" was consistently used as a standalone trade mark, independently of the stylised logo.

Together, the legal submissions and commercial evidence presented a compelling case that "No.2" was more than an ordinary expression. It was a trade mark capable of distinguishing the Applicant's goods.

The Outcome

Following our submissions and supporting evidence, IP Australia accepted the "No.2" word trade mark application in Classes 3 and 5, overcoming the section 41 distinctiveness objection.

Key Takeaways

The "No.2" case illustrates how consistent commercial use and investment can strengthen a trade mark's distinctiveness over time. What begins as an unconventional brand name can become a recognisable identifier of a business and its products.

It also demonstrates the importance of presenting commercial evidence alongside targeted legal submissions to address examination objections. The successful outcome reflects both the client's investment in building the "No.2" brand and the importance of a tailored legal strategy in securing trade mark acceptance.

Facing a Trade Mark Examination Objection?

IP SERVICE INTERNATIONAL assists Australian and international businesses in responding to trade mark examination objections and securing protection for their brands worldwide.

Contact our experts to discuss strategies for protecting your trade mark if you have received an Adverse Examination Report under section 41 or 44 of the Trade Marks Act 1995 or are facing another trade mark objection. You can also explore our other IP Success Stories.

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