1. Trade marks containing this device next to or above words are used on the Applicant's staff uniforms, signage and marketing materials, invoices, social media, and on tags physically attached to fish. The addition of this graphic device to the words 'Daintree Salt Water Barramundi' is an obvious significant visual difference on a side by side comparison, which precludes a total impression of resemblance with the Applicant's Trade Mark. Therefore, use of the Applicant's Registered Trade Mark or trade marks that incorporate said graphic device in some way do not constitute use of the Applicant's Trade Mark.

1. Older examples of composite trade marks used by the Applicant contained in the EIA include 'a copy of the artwork that appeared on a sign at the corner of Vixies and Mossman Daintree Road near the Applicant's Farm from 2006 to 2014', reproduced below:

1. It is difficult to ascertain, from a single instance of a sign next to a road, that the words 'Daintree Saltwater Barramundi' are functioning as a badge of origin in their own right, rather than in conjunction with the fish devices in a particular arrangement along with other material such as alternating white and blue stripes.
2. At least one of these stylised depictions of barramundi features several times, in conjunction with the words 'Daintree Saltwater Barramundi', throughout the evidence dated from the 2005 to 2014. An example from a phone book advertisement dated from 2005 is shown:

1. The same large stylised barramundi is present, and consistently placed to the left of the words, in an example of evidence dated from 2005. The relevant part of the example is reproduced below:

1. Examples of the Applicant's website dated from 2006 to 2011 show essentially the same trade mark as above, without the company identifier and ACN.
2. That this specific depiction of a barramundi was retained throughout advertisements of this period, and occupied such a large and consistent space in the advertisements, speaks to it being an essential feature of the Applicant's various trade marks at the time. One of its functions may be to visually reinforce, in a stylised manner, the fish the Applicant farms, but another of its functions is to act as a prominent visual distinguishing feature for consumers. It is an essential feature not present in the Applicant's Trade Mark.
3. Therefore, on a side by side comparison of the older composite trade marks to the Applicant's Trade Mark, and having regard to the essential features in each, there is not a total impression of resemblance between them. Use of the Applicant's older composite trade marks is not use of the Applicant's Trade Mark.

Use of the words 'Daintree Salt Water Barramundi' as a trade mark

1. Use of the Applicant's Trade Mark without additions or alternations affecting its identity is sporadic and uncommon. For example, the evidence contains example invitations to events hosted by the Applicant in 2005 and 2008, some use on the Applicant's website in 2014 and 2015, and an undated example from the Australian Barramundi Farmers Association website.
2. Not all instances of the words 'Daintree Saltwater Barramundi' use are used to distinguish the Applicant's Goods. In many such cases, such as the awards and other third party references contained in the EIA, such use is to identify the Applicant's physical farm, or name the Applicant as a corporate entity, rather than being used to distinguish the Applicant's Goods from those of other traders. Some exhibits said to demonstrate use of the Applicant's Trade Mark do not contain the Applicant's Trade Mark at all. The most consistent use of the plain words 'Daintree Salt Water Barramundi' is in the text of social media posts, discussed below.

1. Exhibit TMH-8 to Hober contains Facebook posts dated between 2017 and 2023. There are posts from the Applicant's 'Daintree Saltwater Barramundi' and 'Hook-a-Barra' accounts, as well as third party accounts. Where graphic elements are permitted, such as in display pictures, the device from the Applicant's Registered Trade Mark is used.
2. In text, the social media use of the Applicant's Trade Mark usually refers to the farm as a physical place, rather than being used as a sign to distinguish the Applicant's Goods from those of other traders. Where the words 'Daintree Saltwater Barramundi' are used directly in connection with fish, the context is often that of a pure description. For example, one 2016 post on the Australian Sustainable Barramundi account refers to Daintree Saltwater Barramundi as a place a person visited, then states 'I have switched from serving imported Barramundi to serving local sustainable Daintree Saltwater Barramundi. Since then sales have doubled and customers are loving the quality and the fact it is a local product, found right there in the Daintree'. Where the reference to the place visited might be characterised as use of a trade mark, it is at most used to distinguish one farm from other farms, not one trader's goods from another's. The reference to the fish in contrast, notwithstanding that it appears in title case in the post, is contextually a pure description of the goods (barramundi - a type of fish) and from where they were sourced (from saltwater in the Daintree). This does not indicate that this specific consumer of the Applicant's Goods perceived the words Daintree Saltwater Barramundi as denoting a connection between the goods and a specific supplier. Rather, they perceive it to be purely a description of the Applicant's Goods.
3. References from other third party accounts show expressions such as 'sustainably farmed and freshly filleted Daintree Saltwater Barramundi on our tasting menu and as a special main dish'. At face value this is a description of the goods, and is not a use which indicates a connection to any particular trader. The fact that the words Daintree Saltwater Barramundi in this post are capitalised and link to the Applicant's account do not render it use as a trade mark.
4. The hashtag '#daintreesaltwaterbarramundi' appears several times in social media posts, however it is often among other hashtags such as '#barramundifarmers', '#sustainableseafood', '#barramundi', or '#daintree'. While hashtags can in some cases constitute use of a sign as a trade mark, considering the ordinary signification of the Applicant's Trade Mark and the surrounding hashtags, I do not consider this to be use as a trade mark. These hashtags are just a collection of descriptive references.
5. Furthermore, the level of recognition the Applicant's Facebook pages enjoy among consumers has not been made clear. Using interactions such as 'likes' or 'comments' as metrics, the Applicant's social media posts seemingly have minimal engagement.
6. In sum, the evidence of instances of the phrase that forms the Applicant's Trade Mark on social media is insufficient to demonstrate that the phrase consisting the Applicant's Trade Mark has acquired a secondary meaning among the relevant purchasing public, as referring specifically to the Applicant's Goods, to the exclusion of all other traders in saltwater barramundi from this area of Northern Queensland.

1. Exhibited to Hober are the ownership records of the domain name 'daintreesaltwaterbarramundi.com.au' from 2013 to 2025. Screenshots of a website are placed next to most years' ownership records, which display the Applicant's Trade Mark. However, the screenshots are all dated either 20 January 2015 or 11 January 2014 and do not reflect the website's appearance for each year shown. The Applicant is the registrant of this domain name, and the website has been operational for a period of time. These facts, both separately and in combination, do not assist in determining whether there was at the Relevant Date, factual distinctiveness of the Applicant's Trade Mark in relation the Applicant's Goods.
2. The Opponent's evidence demonstrates that before and after 2014/15, other composite trade marks were used on the website. No information has been provided regarding web traffic or how the website is promoted. It should also be noted that website primarily seems to promote the Applicant's farm, and the Applicant's tours of it, rather than the Applicant's Goods specifically, although the fact it is a barramundi farm is referenced.

1. Hober emphasises that the words constituting the Applicant's Trade Mark have been said many times 'in reference to' the fish raised at and sold via the Applicant's farm. No distinction is made between use of the words as a trade mark and use of the words for their primary and as has been found above, inherently descriptive, meaning.
2. In many cases spoken use could, and most likely would be understood as, nothing more than a description of the goods. For example, one post from the Applicant's Hook-a-Barra Facebook page states 'Fresh Daintree Saltwater Barramundi Fillets available tomorrow at Hookabarra. Gates will be open at 9-11am tomorrow to collect orders'. If this statement was made orally, consumers would likely regard 'Hookabarra' as performing the trade mark function (that is, distinguishing this trader's goods from those of others) and the words 'Daintree Saltwater Barramundi' as a description of the goods on offer. For this reason, the claim to thousands of instances of spoken use of the Applicant's Trade Mark by Mr Hober and the Applicant's staff is unconvincing. It does not follow that repetition of a phrase where it describes the goods on offer is use as a trade mark.

Applicability of s 41(3)(b) - Extent of Use

1. The Applicant claims to have customers throughout Australia, however the list of restaurants that have purchased goods from the Applicant is confined to Queensland ('QLD') and New South Wales ('NSW'). No information regarding the dates of the purchases is provided, and therefore no inference can be made about the trade marks to which these consumers were exposed. Exhibit TMH-4 to Hober is an undated letter from a wholesale seafood supplier located in Carey Bay, NSW. The author states that for the last 20 years the supplier has maintained a business relationship with the Applicant. The letter is signed by chefs who are 'strong advocates of Daintree Saltwater Barramundi'. There is no discussion as to which of the Applicant's various trade marks, including the composite trade marks, these consumers were exposed. Invoices for companies in NSW and QLD contained in the evidence, dated 2018 and 2019, display the Applicant's Registered Trade Mark or the phrase 'Daintree Saltwater Barramundi Fish', which for reasons discussed above do not constitute use of the Applicant's Trade Mark.
2. The sales and advertising figures provided in Hober are said to be in connection with 'the Applicant's Business'. The Applicant's Business is defined in the EIA as its sales of barramundi to commercial customers, fish retailers, and fish markets, as well as individuals buying directly from the Applicant's farm, and the Hook-a-Barra service. Sales and advertising in relation to the Hook-a-Barra service cannot be attributed to the Applicant's Trade Mark, and it is not clear how much of these figures could be attributed to use of the Applicant's Trade Mark as opposed to the Applicant's Registered Trade Mark or older composite trade marks.
3. The sales figures relate to the financial years 2017 to 2022. These are divided into figures relating to 'plate size fish' and 'large size fish'. The sales figures for large size fish are significant and remain steady over time. The sales figures for plate sized fish decrease by a significant amount over that the six year period, noting that the Relevant Date is in 2021.
4. The advertising figures for 'the Applicant's Business' for the financial years 2014 to 2022 are quite small. The Applicant submits that one should not expect the Applicant's Goods to be promoted as if they were big budget entertainment services. I accept that the market for the Applicant's Goods is not the same as entertainment services. However, in order to demonstrate that a phrase that is directly descriptive of the goods is registrable, a broad and effective effort to educate the relevant public so as to impart a secondary meaning to that phrase as a signifier of origin would support the Applicant's position.
5. Hober states that relative to the industry generally, the Applicant operates a single 'small to medium' sized barramundi farm. Mr Hober himself is quoted in an exhibited article as saying '[w]e produce a small quantity of fish, relatively speaking'. The farm covers 3.4 hectares and keeps approximately 110 tonnes of fish on the farm at any one point in time. Exhibit TMH-10 states that the Applicant and 6 other farms collectively make up the Australian Barramundi Farmers Association, which represents 95% of the barramundi farmed in Australia, or approximately 7000 tonnes per year. According to this exhibit, the Applicant farms 100 tonnes a year, contrasted to the Humpty Doo barramundi farm in the Northern Territory, which 'turns out as much as 50 tonnes each week'. 100 tonnes is approximately 1.4% of 7000 tonnes, which means the remaining 6900 tonnes is produced by the other traders.
6. I infer from the Applicant's relatively low total production of farmed barramundi in Australia, in conjunction with the relatively low advertising expenditure, that the Applicant has a low level of market penetration and therefore recognition in the market. This too does not support a conclusion that the Applicant's Trade Mark was distinctive of the Applicant's Goods at the Relevant Date.

Applicability of s 41(3)(b) - Conclusion

1. The Applicant's use of the words 'Daintree Salt Water Barramundi' as a trade mark, without additions or alterations that affect the identity of the trade mark, is limited in duration and exposure.
2. The Applicant's use of the words within the Applicant's Trade Mark often refer to and discuss the physical farm location, rather than operating to distinguish the Applicant's Goods from those of other traders. When it has been used in connection with fish directly, in text, this phrase is often at face value simply a description of the qualities and geographic origin of the Applicant's Goods.
3. Older advertising materials typically demonstrate one of its unregistered composite trade marks used in local proximity to the farm itself. It is also not clear from the evidence whether or how these older composite trade marks were used to distinguish the Applicant's Goods, rather than the Applicant's farm itself.
4. The Applicant's claim to thousands of instances of aural use is lacking in context which might inform whether it was used as a trade mark for fish, as the name of the farm itself, or solely for the ordinary signification of the descriptive phrase.
5. The evidence relating specifically to the Applicant's Hook-a-Barra service does not advance the Applicant's position, as the Applicant's Trade Mark only appears as part of the whole descriptive phrases 'Daintree Saltwater Barramundi Fish Farm', or 'Daintree Saltwater Barramundi Farm'. This is not use of the Applicant's Trade Mark.
6. Little information has been provided to support the Applicant's claim to customers 'throughout Australia' rather than customers in NSW and QLD at unspecified times since 2005. The advertising figures provided are small, and those materials overwhelmingly reflect use of the Applicant's Registered Trade Mark or older composite trade marks. The only photo of an actual fish for sale at the Applicant's farm, which is undated, bears the Applicant's Registered Trade Mark.
7. The Applicant has provided little information as to how the Applicant's relatively low marketing expenditure manifests, or how it promotes its products to commercial buyers or to the public using the words 'Daintree Salt Water Barramundi' as a badge of origin for its fish, rather than a description of those goods.
8. Considering all of this, I am satisfied that the Applicant's Trade Mark has not been used to such an extent that it did in fact distinguish the Applicant's Goods from those of other traders at the Relevant Date. The Opponent has established the ground of opposition under s 41(3).
9. As the Opponent has established this ground of opposition in respect of all the Applicant's Goods, it is not necessary to consider the other grounds pursued by the Opponent.

1. Section 55(1) relevantly states that:

Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

having regard to the extent (if any) to which any ground on which the application was opposed has been established.

1. As I am satisfied there is a ground of opposition under s 41(3), I refuse to register the Applicant's Trade Mark. If the Registrar is served with a notice of appeal, the disposition of this application should be in accordance with the Court's order or direction.

1. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle. I award costs against the Applicant in accordance with s 221, in the amounts set out in Schedule 8 of the Regulations.

[1] Unless stated otherwise, references to sections or regulations in this decision are references to sections of the Trade Marks Act 1995 (Cth) ('Act') or regulations of the Trade Marks Regulations 1995 (Cth) ('Regulations'), respectively.

[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[3] Telstra Corporation Limited v Phone Directories Company Australia Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [4] (Kitto J).

[5] [1964] HCA 55, [5].

[6] Ibid [71] (French CJ, Hayne, Crennan, and Kiefel JJ) (citations omitted).

[7] RB (Hygiene Home) Australia Pty Ltd v Henkel Australia Pty Ltd [2024] FCAFC 10, [83]-[84] (Nicholas, Burley and Hespe JJ).

[8] [1963] HCA 66, [12] (citations omitted).

[10] Bohemia Crystal Pty Ltd v Host Corporation Pty Ltd [2018] FCA 235, [274] (Burley J)

[11] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [24] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).