3. Statements of number, price, quality, or name of place

In order to qualify as a series under option (ii) of the definition of “series of trade marks” in section 5 of the Act, the marks in an application must:

• Resemble each other in their material particulars, and
• Differ only in respect of statements of number, price, quality or names of places.

The “statements” described in option (ii) “must not contribute to the function that the mark has in distinguishing the proprietor’s goods from those of other traders”. ⁹ Rather, they must be purely informative in nature. As stated in an IPONZ hearing decision:¹⁰

Lynson makes it clear that once the additional features of a mark take on the role of distinguishing the proprietor’s mark from that of others the features cease to be purely informative of the goods and services the mark represents.

Footnotes

⁹ Lynson above n 2.

¹⁰ Trade Mark Application Nos. 280104 and 280105, DairyAssist, DairyAssist first in service, FarmFirst, Farmfirst first in supplies, in classes 37 and 42 (30 May 2000) unreported, Assistant Commissioner Duffy.