(1) For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant.
(2) An application for the registration of a trade mark shall be rejected if the trade mark is not capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered from the goods or services of other persons.
(3) In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar shall first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.
(4) If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so distinguishing the designated goods or services—
(a) the Registrar is to consider whether, because of the combined effect of the following—
(i) the extent to which the trade mark is inherently adapted to distinguish the designated goods or services,
(ii) the use, or intended use, of the trade mark by the applicant, and
(iii) any other circumstances,
the trade mark does or will distinguish the designated goods or services as being those of the applicant; and
(b) If—
(i) the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services the trade mark is taken to be capable of distinguishing the applicant's goods or services from the goods or services of other persons; or
(ii) the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services, the trade mark is taken not to be capable of distinguishing the applicant's goods or services from the goods or services of other persons.
(5) If the Registrar finds that the trade mark is not inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply—
(a) if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant, the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
(b) in a case other than in paragraph (a), the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.