ABB Asea Brown Boveri Ltd v ABB Grain Limited

[2001] ATMO 123

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Opposition by ABB Asea Brown Boveri Ltd to registration of trade mark application 719056(31, 42) - ABB - filed in the name of ABB Grain Limited.

Background

The Australian Barley Board applied for registration of the abovementioned trade mark on 8 October 1996.  On 26 October 1999, the application was assigned to ABB Grain Limited ("ABB Grain").  The applied for mark is as follows:

The application originally sought Classes 31 and 35. However, this was later amended to Classes 31 and 42.  The relevant goods and services are:

Class 31 Barley, oats, wheat, sorghum, maize, rye, triticale, millet, buckwheat, oilseeds, soybeans, peas, lupins, lentils, beans and other grains

Class 42

Quality control of barley, oats and other grains; distribution (by wholesale and retail) of barley, oats and other grains

The application was duly accepted, and advertised on 22 October 1998.  A notice of opposition was filed by ABB Asea Brown Boveri Ltd ("ABB") on 14 January 1999.  The notice of opposition claimed 9 grounds.  At the hearing, five grounds were pressed, relying upon sections 44 (x2), 58 and 60 and the exercise of the Registrar's general discretion. 

The matter eventually came on for hearing before me, as the delegate of the Registrar, on 18 September 2001 in Canberra.  Mr Stephen Burley of Counsel represented ABB, instructed by Ms A Freeman of Spruson & Ferguson.  Ms M Dunham of Finlaysons represented ABB Grain.

Evidence

ABB's evidence in support comprised a statutory declaration by Mr Peter Kinsey dated 12 July 1999 including Exhibits PK-A through PK-O.  Mr Kinsey is the Director of Legal Services for Asea Brown Boveri Pty Limited.

ABB Grain's evidence in answer comprised statutory declarations by:

• Mr Gary Spiel dated 8 September 1999;

• Mr David Thomas dated 8 September 1999; and

• Mr Michael Iwaniw dated 8 September 1999 including Exhibits MI-A though

MI-M.

Mr Spiel is General Manager of Marketing Operations for ABB Grain.  His association with ABB Grain or its corporate predecessors goes back to 1980, with some breaks in service.  Mr Thomas is Executive Manager of Corporate Relations with South Australian Co-Operative Bulk Handlers - however, he had previously been employed by the Australian Wheat Board in the period 1973 to 1999.  Mr Iwaniw is the Managing Director of ABB Grain, having been employed with the company and its corporate predecessors since 1969.

ABB's evidence in reply comprised a statutory declaration by Mr Beat Wiebel.  The declaration includes Exhibit BW1. Mr Wiebel is Vice President and Group Intellectual Property Counsel of ABB.

At the hearing, Ms Dunham also tendered a statutory declaration by Mr Reginald Smith.  The declaration included Exhibit RW-1.  The declaration is properly characterised as further evidence and therefore, must be filed in accordance with Regulation 5.15 of the Trade Marks Regulations 1995.  Mr Burley was given the opportunity to peruse the declaration at the hearing.  Notwithstanding its late filing, Mr Burley did not object to the document being relied upon by ABB Grain.  Accordingly, I was satisfied that it was proper to admit the evidence and I will take it into account in reaching my decision.

Issues and Determination

The opponent relies on sections 44, 58 and 60 in its notice of opposition.  I will deal with each in turn.

Section 44

Section 44 reads:

Identical etc. trade marks

(1)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of goods (applicant’s goods) must be rejected if:

(a)the applicant’s trade mark is substantially identical with, or deceptively similar to:

(i)a trade mark registered by another person in respect of similar goods or closely related services; or

(ii)a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and

(b)the priority date for the registration of the applicant’s trade mark in respect of the applicant’s goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

Note 1:For deceptively similar see section 10.

Note 2:For similar goods see subsection 14(1).

Note 3:For priority date see section 12.

Note 4:The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.

(2)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:

(a)it is substantially identical with, or deceptively similar to:

(i)a trade mark registered by another person in respect of similar services or closely related goods; or

(ii)a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and

(b)the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.

Note 1:For deceptively similar see section 10.

Note 2:For similar services see subsection 14(2).

Note 3:For priority date see section 12.

Note 4:The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.

(3)If the Registrar in either case is satisfied:

(a)that there has been honest concurrent use of the 2 trade marks; or

(b)that, because of other circumstances, it is proper to do so;

the Registrar may accept the application for the registration of the applicant’s trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant’s trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area.

Note:For limitations see section 6.

(4)If the Registrar in either case is satisfied that the applicant, or the applicant and the predecessor in title of the applicant, have continuously used the applicant’s trade mark for a period:

(a)beginning before the priority date for the registration of the other trade mark in respect of:

(i)the similar goods or closely related services; or

(ii)the similar services or closely related goods; and

(b)ending on the priority date for the registration of the applicant’s trade mark;

the Registrar may not reject the application because of the existence of the other trade mark.

Note 1:An authorised use of the trade mark by a person is taken to be a use of the trade mark by the owner of the trade mark (see subsection 7(3)).

Note 2:For predecessor in title see section 6.

Note 3:For priority date see section 12.

The opponent relied on two of its own registered marks:

627221	abb
490348

These will be referred to as "the opponent's trade marks".

Each of the opponent's trade marks have a priority date which is earlier than the applied for trade mark.  The opponent has not indicated that it relies on any trade marks for which registration is currently being sought.

The matters for determination are therefore:

(a)whether the applied for trade mark is substantially identical to either of the opponent's registered trade marks;

(b)whether the applied for mark is deceptively similar to any of the opponent's registered trade marks in that it is likely to deceive or cause confusion pursuant to section 10;

(c)whether the opponent's trade marks are registered in respect of similar goods or closely related services and/or similar services or closely related goods;

(d)whether there has been honest concurrent use of the relevant trade marks; and

(e)whether there has been prior, continuous use of the applied for trade mark.

I will address each of these in turn.

(a)       Substantial identity

The test for substantial identity was set down by Windeyer J in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 at 414 15:

In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.

In the present case, each mark is comprises of the same three letters.  There is no real meaning to their arrangement, in the sense that the do not form a word or common-usage phrase such as "ABC", "TNT" or "BBQ".  Visually, the marks  and  are similar - each employs a block font and incorporates lines to enhance the appearance.  However, neither the cruciform in  or the vertical lines in are essential elements of the trade marks.  The impression that is carried away in both cases is that the letters are initials or an acronym.  There is nothing in the marks which hint at the origin of the letters - for instance, none of the letters are stylised versions or graphical representations of the goods or services which the owner provides.  I am satisfied that the marks are substantially identical.

In terms of ABB and , I must take into account the possibility that ABB will want to use its word mark for a variety of fonts - per Jenkins LJ in Morny Ltd's Trade Marks (1951) RPC 131 at 149-150, where he stated that a registration in plain block script is taken to protect all other versions of that trade mark, so long as they are rendered in a clearly legible form of lettering. In the case of , there is nothing unusual in the font, even when the vertical lines are taken into account. Accordingly, I find that these marks are also substantially identical.

(b)      Deceptive similarity

Having found that the trade mark is substantially identical, it follows that it must also be deceptively similar.  Therefore, I do not need to consider this element further.

(c)Similar goods or closely related services or similar services or closely related goods

With the relevant portions highlighted, the opponent's registrations cover:

627221

Class 42:Services of engineers or other technical specialists being design and planning services, writing and editing of programs for the processing of data for others, writing and editing of technical reports, technical advice and expert activities in this class, leasing of computers, measurement services in this class and testing services in this class, evaluation of measurements, consultancy in computer-aided design and production;

all the foregoing services provided in the field of the generation, transmission, distribution and industrial use of electrical energy, rail-mounted transport systems, environmental technology, industrial processes and installations, supercharging of internal combustion engines, remote heating, interior electrical installations, air-conditioning technology, refrigeration, ventilation, offshore and marine technology, telecommunications, metrology and engineering;

resale of electrical and mechanical engineering products, agricultural products, textiles and foodstuffs, especially in offsetting transactions; material testing including non-destructive material testing 

490348

Class 42:Services of an engineer, preparation of data processing programmes for third parties, elaboration of technical expert opinions, editing of printed publications, consultant engineering services, expertise and advisory services in technical fields, leasing of data processing equipment

I am to decide whether any of these services are closely related to the applicant's nominated goods:

Class 31 Barley, oats, wheat, sorghum, maize, rye, triticale, millet, buckwheat, oilseeds, soybeans, peas, lupins, lentils, beans and other grains

Class 42

Quality control of barley, oats and other grains; distribution (by wholesale and retail) of barley, oats and other grains

During the course of the hearing, Mr Burley indicated that 627221 covered "all the foregoing services provided in the field of agricultural products, textiles and foodstuffs."  I do not believe that this is correct.  There is a semi-colon between the words "engineering" and "resale of".  Accordingly, "agricultural products, textiles and foodstuffs" fall outside "services of engineers or other technical experts being ... [technical advice and expert activities, measurement services, and testing services in this class]".  They do however, fall within the parameter defined by the word "resale".  In other words, ABB has a registration which covers the resale of agricultural products, textiles and foodstuffs.  It does not have a registration which specifically covers the provision of technical, measurement or testing services in relation to such products. 

Notwithstanding this, the registration does cover what can be described as measurement, evaluation and testing services in relation to industrial processes and installations, air-conditioning technology, refrigeration and ventilation.  These concepts encompass quality control services, and are capable of including the storage of agricultural products.  Accordingly, there is a conflict between the opponent's registration and the applicant's nominated services.

The same conclusion cannot, however, be drawn in relation to 490348.  The provision of the services of an engineer, consultant engineering services and expertise and advisory services in technical fields does not, to my mind, necessarily encompass quality control services.  

Notwithstanding this, the overlap between 627221 and the applicant's nominated services is sufficient to satisfy this element of s.44.

It is also worth noting that 627221 includes the "resale of ... agricultural products, textiles and foodstuffs, especially in offsetting transactions" in Class 42 while the applied-for registration includes:

Class 31 Barley, oats, wheat, sorghum, maize, rye, triticale, millet, buckwheat, oilseeds, soybeans, peas, lupins, lentils, beans and other grains

The question is therefore: "are the opponent's services 'closely related services' to the applied for goods pursuant to s.44(1)(a)(i)?" 

Section 14 of the Act reads:

14  Definition of similar goods and similar services

(1)For the purposes of this Act, goods are similar to other goods:

(a)if they are the same as the other goods; or

(b)if they are of the same description as that of the other goods.

(2)For the purposes of this Act, services are similar to other services:

(a)if they are the same as the other services; or

(b)if they are of the same description as that of the other services.

In order to support a contention that "retail services" are "closely related" to particular goods, it is not sufficient for a party to simply point to the fact that particular goods are dealt with through the retail trade.  According to the tests enunciated in Jellinek's Application (9146) 63 RPC 59, it is necessary to consider the nature of the respective goods and services and the trade channels through which they are provided. It is apparent that although many goods are handled through retailing outlets, most retailing outlets deal with goods that they themselves do not manufacture. The corollary is that the trade channel for retailers seldom reaches back into the manufacturing sector. As per the finding in Registrar of Trade Marks v Woolworths Ltd 45 IPR 411 at 424, a finding of a close relation between goods and services

may, and perhaps in most cases will, be defined by the function of the service with respect to the goods. Services which provide for the installation, operation, maintenance or repair of goods are likely to be treated as closely related to them.

Accordingly, and in the absence of any evidence showing a functional connection between the nominated goods and the opponent's retailing services, I am not satisfied that they are closely related. 

On the other hand, the applied-for registration also includes:

Class 42 Quality control of barley, oats and other grains; distribution (by wholesale and retail) of barley, oats and other grains (emphasis added)

This is clearly in conflict with 627221 in so far as that registration protects "resale of ... agricultural products, textiles and foodstuffs, especially in offsetting transactions".  Accordingly, these are similar services within the meaning of ss.14 and 44(2)(a)(i) and this element of s.44 is again made out.

(d)      Honest concurrent use

Section 44(3) reads:

If the Registrar in either case is satisfied:

(a)      that there has been honest concurrent use of the 2 trade marks; or

(b)      that, because of other circumstances, it is proper to do so;

the Registrar may accept the application for the registration of the applicant’s trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant’s trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area.

Note:    For limitations see section 6.

Alex Pirie & Sons Ltd's Application (1933) 50 RPC 147 and John Fitton & Co Ltd's Application (1949) 66 RPC 110 confirmed that the following five factors are to be considered in determining whether there has been the requisite "honest concurrent use":

• the extent of the user in time and quantity;

• the degree of confusion likely to ensure from the resemblance of the marks which is a measure of public inconvenience;

• the honesty of the concurrent use;

• whether any instances of confusion have in fact been proved;

• the relative inconvenience which would be caused if the mark were registered.

According to Mr Iwaniw, the applicant has been using the initials ABB since at least 1939.  Certainly, there is documentary evidence that the initials have been used as an anagram since the mid-1960s (Exhibit MI-L) and as part of a letterhead logo since 1969 (Exhibit MI-A).   The letterhead logo has taken a variety of forms over the years, but it has always appeared with an ear of wheat.  The most recent rendering of this logo is:

The stylised versions of the initials for which registration is sought, , form part of the most recent logo.  The logo, and by implication, the stylised letters appear to have been first used in 1998 or 1999. At the same time, the stylised letters were used on their own, without the accompanying wheat (Exhibit MI-B).  The application for registration was lodged on 8 October 1996.

The opponent asserts that its registered trade marks were first used by its parent company in Switzerland in the period 1987/88 (paragraph 7 of Mr Kinsey's declaration).  490348 has a registration date of 30 June 1988 and a convention date of 26 April 1988.  627221 has a registration date of 13 April 1994.

Accordingly, and strictly speaking, the opponent's use in Australia of its trade marks pre-dates the applicant's use of the applied-for trade mark.  It does not however, pre-date the applicant's use of the initials in Australia.  Exhibit MI-L shows first use of the letters in a trade mark sense (ie as a badge or mark of origin) by the applicant on 30 June 1965.

For the purposes of s.44(3), I am required to ascertain whether there has been honest concurrent use of the applied-for trade mark, and the opponent's trade marks.  In this respect, it is only the applied for trade mark which is relevant.  However, s.44 requires me to take into account the manner in which the applied for trade mark came into existence.  There is clearly a long history of trade mark use of the initials ABB by the applicant.  The movement to the current trade mark has been a natural progression.  There is nothing before me that indicates that the current trade mark was based on, or even inspired by, the opponent's trade mark .  Certainly, I am not satisfied that the applicant had any intention to obtain any advantage from the reputation that the opponent might hold, or the level of recognition of the opponent's graphical trade mark.  I am therefore satisfied that the applicant came to its mark with honest intentions.

Further, there is no evidence before me of any confusion or deception having occurred to date.  There is no evidence before me that the applicant has attempted to obtain any advantage or do anything other than carry out the responsibilities and activities with which it has been charged since 1939.

In terms of inconvenience to the parties and the public, I am not satisfied that any of these parties will be disadvantaged if the application is allowed to proceed.  Certainly, the two entities have co-existed for a substantial period of time, without any evidence of deception or confusion occurring to date.  While I will return to this point later, I believe that this is due to the standing each entity has in their respective fields.

Finally, I see no reason to place any limitations on the registration.  The applicant has been known by the initials ABB for a significant amount of time in a niche market.  I am not satisfied that limiting its application to a smaller class of services or location would serve any real purpose.

(e)       Prior continuous use

In line with the comments I have already made, the applicant's first use of the applied-for trade mark was in 1998 or 1999.  This is clearly after the date of the opponent's priority dates for 490348 and 627221.  Accordingly, there has been no prior continuous use of the applied-for trade mark as required by s.44(4).

Section 44 Conclusion

On the basis of honest, concurrent use, I find that s.44 is no bar to the application proceeding to registration.  Accordingly, this ground is not made out.

Section 58

The opponent's case on this ground rests on a lack of evidence by the applicant that the applied for trade mark has been used in relation to quality control, whereas, and based on the interpretation the opponent gives to its Class 42 services, it has used its marks in relation to quality control.  Accordingly, as far as the opponent is concerned, it is the first user of the mark in relation to quality control services in Australia, and therefore is the first owner of the mark. 

I am not however, satisfied that the opponent has in fact used its marks in the requisite manner.

Despite the hundreds of pages of evidence, I could not find, and was not taken to, any document which shows that the opponent has provided quality control expertise or advice in the course of trade.  There is ample material showing their involvement in the supply of electrical engineering products and services, however, this does not of itself demonstrate that they have provided quality control advice or expertise.  I am not satisfied that the advising, designing and supplying of equipment is necessarily the same thing as contracting or providing quality control consultancy services.  Therefore, I am not satisfied that the opponent has used its registered trade marks in relation to the provision of quality control services, and as a result, I am not satisfied that the opponent has established that it is the first owner.  Therefore, this ground of opposition fails.

Section 60

Section 60 states:

Trade mark similar to trade mark that has acquired a reputation in Australia

The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

(a)it is substantially identical with, or deceptively similar to, a trade mark that, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, had acquired a reputation in Australia; and

(b)because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.

Note 1:For deceptively similar see section 10.

Note 2:For priority date see section 12.

I have already found that the applied for trade mark is substantially identical and deceptively similar to the opponent's trade marks.

The opponent alleges that its evidence shows that it possesses a substantial reputation in Australia, and that the reputation existed before the priority date.  Certainly, as broad propositions, and based on the evidence filed by the opponent, I am satisfied of both these allegations.

However, the terms of s.60 also require me to take into account the goods and services for which registration is sought, and to then determine whether the reputation the opponent holds is such that deception or confusion would arise in relation to those goods and services.

The opponent asserts that its products are sold into the agricultural industry, and as a result, it has an established reputation in this field.  Certainly, Exhibit PK-H and paragraph 15 of Mr Kinsey's declaration establish that the opponent does sell products to agricultural entities.  Exhibit PK-H comprises a list of agricultural entities to whom ABB products have been sold in the period 1988 through 1997 as well as a list of the actual goods sold.  As far as I can ascertain, each product is of a mechanical or electrical nature and could be used in relation to primary production, particularly in relation to grain storage and movement facilities.  In paragraph 15 of his declaration, Mr Kinsey, asserts that the opponent has marketed its diversified range of engineering goods to primary producers, grain handlers and processors of primary products, including barley, in all States of Australia.  Accordingly, I am satisfied that the opponent does sell equipment or machinery into the primary sector.

However, I am not satisfied that the reputation of the opponent extends beyond the supply of mechanical equipment which is able to be used in the agricultural industry, particularly in relation to the storage and on-site transportation of primary produce.  There is no evidence before me of any reputation in relation to the sale, supply or re-sale of agricultural produce or foodstuffs.  Nor is there any evidence before me which satisfies me that the opponent has a reputation for quality control advisory services in the agricultural field.

In making these determinations, I have taken particular note of the extensive survey material contained in Exhibit PK-E and the advertising and press materials contained in Exhibits PK-J through PK-N. 

In relation to the survey material, the results set out the opponent's reputation in the electrical engineering, manufacturing and supply industry.  There is no mention at all of agricultural products or services.  There is no specific or direct mention of quality control advisory services.  Those items which do address "consultancy" services are as follows: (emphasis added):

Main products and services associated with ABB (unaided question) - Australia - Qu.7:  Which main products and services do you associate with the ABB Company?
switching equipment	37%	electrical energy equipment	9%
electrical motors	25%	generators	9%
transformers	24%	electrical railway equipment	7%
el. measuring, testing, control equipment i.g.	21%	engineering/consulting services	7%
electrical engineering/equipment i.g	15%	turbines	6%
high voltage equipment/systems	11%	cables and lines equipment	5%
drives	10%	flexible automation/robotics	5%
power plants	10%
electronics/electronic components	10%	others	21%
power transmission/distribution in general	10%	don't know	14%

Qu.10  If you think about advertising in newspapers, specialised press or similar, do you remember to have seen (sic) any print ads about ABB (lately)?

Responses (originally in graph format)

Total  25%

Power Generation  35%

Industry  29%

Government Officials  27%

Scientific Community  25%

Power Distribution and Transmission     25%

Journalists  13%

Financial Community  11%

Consultants/Civil Engineers  9%

Neither of these are sufficient to satisfy me that the opponent has a reputation for the provision of quality control services in relation to agricultural produce. 

Similarly, none of the material contained in Exhibits PK-J through PK-N demonstrates a reputation in anything other than what appears to be the opponent's core business - the supply and installation of electrical and mechanical equipment.

On the other hand, it is clear from the evidence that the applicant has a long history of providing services to primary industry.  The history stretches back for at least 50 years.  The evidence discloses that ABB Grain enjoys its own significant reputation amongst primary producers and other entities who are involved in the agricultural industry.  Quite unlike the opponent, ABB Grain's reputation is not in relation to mechanical equipment.  Rather, it lies in the co-ordination, collection, promotion, development, supply and sale of grain products and the grain industry.  In that regard, it is well known in its niche market. 

In Registrar of Trade Marks v Woolworths (1999) 45 IPR 411 at 426, French J confirmed that there must be a real, tangible danger of deception or confusion occurring before the word "likely" would be made out.

In the present case, I am not satisfied that the requisite degree of danger arises. Consumers of the respective parties' goods or services, if they are purchasing on the basis of reputation, will not confuse the two.  Each party operates in their own specific fields and has a distinct reputation.  The applicant is not seeking by its trade mark application to go any further than the field in which it enjoys its reputation.  The opponent, while it may sell its products and services into the same field, does not, in my opinion, have a reputation of the same kind as the applicant, nor is it one which is likely to give rise to deception or confusion.  The opponent is known as an electrical engineer.  It is known for its work and products in that field.  This is very different from the goods and services for which the applicant has sought registration.

The low likelihood of deception or confusion occurring,  is, in part, borne out by the fact that, despite the co-existence of the parties in Australia since at least 1988, the opponent has not provided any evidence of confusion to date.  While the opponent did seek to rely on the fact that the applicant had registered the domain name and the opponent had registered I do not see how this, on its own, is any evidence of confusion at all.  To my mind, the fact that the applicant was successful in obtaining its domain name is neither evidence of confusion nor of impropriety on the part of the applicant.  On the contrary, the applicant has done no more than sought and been granted a registration which fairly reflects its name, operating status and location. 

In summary, I am not satisfied that the opponent has shown that the requisite likelihood of deception or confusion will arise.  Accordingly, the opponent has failed to make out its s.60 ground of opposition and the ground must fail.

Summary

I have found that the opponent has failed to make out its s.58 and 60 grounds.  I have found that while the opponent has made out its s.44 ground, the provisions of s.44(3) should be applied on the basis that there has been honest concurrent use.  Accordingly, and subject to the expiry of the relevant appeal period and the payment of any necessary fees, there is no reason why the applied for trade mark should not proceed to registration with an appropriate endorsement.

Costs

The opponent has been unsuccessful in its opposition.  The usual course in such circumstances is to direct that the opponent pay the applicant's costs.  I see no reason to derogate from this.  Accordingly, I direct that the opponent pay the applicant's costs at the appropriate scale.

Geoff Purvis-Smith

Hearing Officer

14 December 2001