15/09/2026
The case of Care A2 Plus Pty Ltd v The a2 Milk Company Limited (No 2) [2026] FCA 475 was recently decided by the Federal Court and provides useful insights for trade mark owners or prospective owners about descriptive trade marks.
Background
This case dealt with two main disputes:
- a2 Milk Company Limited (A2 Milk) challenged the trade marks that Care A2 Plus Pty Ltd (Care A2), a baby formula company, had attempted to register; and
- a counter claim by Care A2 that A2 Milk’s trade marks were not valid because they were descriptive and should be removed from the register.
Care A2 attempted to register 10 trade marks including the words “A2” and “AUSTRALIAN A2 MILK” which A2 Milk challenged as being deceptively similar to A2 Milk’s existing trade mark which it held over the phrase “a2 milk” and a logo. In response, Care A2 claimed these trade marks were descriptive.
Under section 41 of the Trade Marks Act 1995 (Cth) a trade mark can be rejected, opposed or cancelled if it is not capable of distinguishing the owner’s goods and services, for example, because it is descriptive of a quality, purpose of the good or service.
Care A2’s claim was that “a2” is a reference to the he A2 ß-casein protein found in cow’s milk, and as such was descriptive of the product by identifying it contained the protein, rather than distinguishing A2 Milk’s goods.
Finding
The Federal Court held that the term “A2” as it appeared in the A2 Milk marks was not descriptive and was functioning as a badge of origin.
Why was the trade mark not regarded as descriptive?
When registering a trade mark or assessing trade mark infringement, it’s important to identify the typical consumer. In this case, the Court defined the consumer as an ordinary grocery shopper who regularly buys milk.
The Federal Court found that such consumers don’t have knowledge of milk protein chemistry and wouldn’t see “a2 milk” as describing the milk’s quality or characteristics. Instead, the term “A2” is seen as a suggestive reference to the protein, which is allowed under the Trade Marks Act 1995 (Cth).
The Court dismissed Care A2’s counter claim and found that Care A2’s mark “A2+” was deceptively similar to A2 Milk’s word trade mark, but did not find it similar to A2 Milk’s logo marks which contained a dark smudge as an essential element.
Key Takeaways
Trade mark owners should avoid descriptive trade marks so far as possible. However, when seeking to challenge a seemingly descriptive mark be wary that:
- the extent and nature of prior use may weigh against a trade mark being classed as descriptive and instead, led to a conclusion it has acquired distinctiveness
- the categorisation of a consumer group can impact whether or not a trade mark is considered descriptive
- there is a fine line between descriptive and ‘allusive’ trade marks – allusive trade marks indirectly or covertly refer to a characteristic, as opposed to as opposed to a descriptive mark that directly denotes a feature or quality; and
- prominent visual elements or shapes may be regarded as an essential identifying feature, capable of it distinguishing it from other marks containing just words.
If you have any questions about whether your trade mark is descriptive or would like any assistance registering a new trade mark, contact our IP team at: ip@griffinlegal.com.au
