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.’