22.10. Phonetic equivalents, misspellings and combinations of known words

Date Published

Words consisting of obvious phonetic equivalents, simple combinations, misspellings, minor changes or trifling variations of descriptive words are not prima facie capable of distinguishing.  However, unlikely grammatical constructions of words which would otherwise attract grounds for rejection, including inversions, play on words and portmanteau words (two words telescoped together), may be inherently adapted to distinguish.

Although the word "invention" is not mentioned in the Act, the concept is still of relevance in assessing whether a word is capable of distinguishing. Words with a degree of invention usually possess a capacity to distinguish.  Existing case law on what constitutes invention is relevant in giving guidance on these matters.  As discussed in the case law, some grammatical constructions which would not be inherently adapted to distinguish are:

  • The addition of a diminutive or a short and meaningless syllable to a known word (see Eastman Photographic Material Co's Appn (1898) 15 RPC 476 (‘Solio’)).

  • Minor variations in spelling

  • Adjectival form of words (see Sir Titus Salt's Appn (1894) 11 RPC 518 (‘Eboline’) and also Angelides v James Stedman Henderson Sweets Ltd (1927) 40 CLR 43 (‘Minties’)).

  • Combinations of two or more known words (see De Cordova v Vick Chemical Co (1951) 68 RPC 103 (‘Vapo-Rub’)).

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