You received an adverse examination report

An adverse report is not a refusal

An adverse report is routine. It is an examiner's preliminary view, not a refusal. You have 15 months from the date of the report to overcome it, extendable, so there is time to do this properly.

Read which ground is raised

Section 41 says the mark is too descriptive to distinguish. Section 44 says there is a conflicting earlier mark.

The routes around a s 44 citation

• Argue the marks or the goods are not similar. Submissions on the visual, aural and conceptual differences, and on the trade channels. This is the cheapest route, and it often succeeds where the cited mark is weak.
• Honest concurrent use: s 44(3)(a). Evidence that you adopted and used the mark honestly, without knowledge of the cited mark, alongside it. The Registrar weighs the honesty of adoption, the extent of use, the degree of confusion, and any instances of actual confusion.
• Prior continuous use: s 44(4). Where you used the mark continuously from a date before the priority date of the cited mark. This is the strongest route because it is a right, not a discretion.
• Other circumstances: s 44(3)(b). A residual discretion, and the usual vehicle for a consent or coexistence agreement with the owner of the cited mark.

Amending instead

Narrowing the specification to exclude the goods where the conflict arises will sometimes remove the citation entirely, and is often faster and cheaper than an evidentiary route. That only works if the excluded goods are not the ones you sell.