Case - Kosciuszko Thredbo Pty Limited v Thredbo NetMarketing Pty Limited [2014] FCAFC 87
Summary of issue(s)
The complexity with establishing descriptive trade names that has become distinctive
of a particular business. Specifically, where a brand name is a geographical location or
otherwise descriptive, it must become distinctive of the Plaintiff’s business which is a
question of fact to be determined having regard to all relevant contextual
circumstances.
Summary of the relevant fact(s)
The plaintiffs (‘KT’) sought to restrain the defendants (‘TN’) from utilising the word
“Thredbo”, a geographical name of a town located within Kosciuszko National Park of
New South Wales in their domain names, company and business names and
specifically on their website. KT claimed they were identified as “Thredbo” in the
public eye and that substantively any use of that word in relation to activities or
businesses conducted at that location would be associated with them1 and that the
TN’s conduct was misleading or deceptive under the provisions of the Australian
Consumer Law and specifically for the purposes of this assignment, amounted to
passing off of TN’s business as that of the KT.
Decision by the Court
The Full Federal Court rejected KT’s assertion that the word “Thredbo” had acquired
a secondary meaning in relation to their business based on the following:

The word “Thredbo” is a geographical name of a location in New South Wales
and;

The plaintiff ‘KT’ is not entitled to a monopoly and claiming rights in the
geographical use of the word “Thredbo” in associated with operating businesses
relating to accommodation in Thredbo.
1
Fitzgerald, Anna, Intellectual Property Principles and Practice, Thomas Reuters, pg.641

The Courts recognised that ‘ordinarily, a trader is entitled to use a geographic
name honestly and accurately unless that name has become distinctive of
another's goods or services and the trader is using the name to pass off its good
or services as those of the other.’