Aitken Enterprises Pty Ltd v The Lincoln Electric Company
[2024] ATMO 179
•25 September 2024
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Aitken Enterprises Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by The Lincoln Electric Company for removal of trade mark number 1514027 (7) – ULTIMARC – in the name of Aitken Enterprises Pty Ltd
Delegate:
Bianca Irgang
Representation:
Opponent: Alize Shaffer of IP Partnership Lawyers
Applicant: Chelsea Peters of Spruson & Ferguson
Decision:
2024 ATMO 179
Trade Marks Act 1995 (Cth) - section 96 opposition: s 92(4)(a) and (b) application for removal - Opponent’s evidence does not show use of the Trade Mark during the relevant period or obstacle to use for some goods – exercise of Registrar’s discretion not appropriate – Trade Mark to be partially removed from the Register
Background
This decision is pursuant to an application made on 29 July 2022 under ss 92(4)(a) and 92(4)(b) of the Trade Marks Act 1995 (Cth) (‘Act’) by The Lincoln Electric Company (‘Applicant’) to partially remove the trade mark detailed below from the Register of Trade Marks. The application is made in respect of some of the goods for which the trade mark is registered, that is, the application is for partial removal of the trade mark.
Registration No.
1514027
Lodgement date
13 August 2012
Goods
Class 7: Apparatus for mechanised welding (other than electric); autogenous welding apparatus (gas operated); autogenous welding machines; electric machines for incandescent welding; electric machines for resistance welding; electric machines for spark welding; electric radiator welding machines; electric resistance welding machines; electric track welding machines; electric welding machines; electro fusion welding machines; gas welding apparatus; gas welding machines; gas welding machines; high frequency welding machines; hot air welding machines; machines for resistance welding (gas operated); machines for welding (electric); machines for welding (gas); machines for welding corners on PVC window frames; metal welding apparatus (gas); metal welding machines (electric); metal welding machines (gas); plasma welding apparatus (gas-operated); plasma welding machines; plastics welding machines; regulators for use in welding machines; robotic electric welding machines; robots for welding; single column welding presses; spot welding machines; thermal contact welding machines; thermal impulse welding machines; ultrasonic welding heads; ultrasonic welding machines; welding apparatus for TIG welding (gas-operated); welding apparatus operated by compressed air; welding apparatus operated by gas; welding apparatus operated by oxyacetylene; welding apparatus, electric (machines); welding apparatus, gas-operated; welding machines for thermoplastic tubes; welding machines for use in the jewellery trade; welding machines for welding plastics material; welding machines, electric; welding torches (gas-operated); wire welding machines; pneumatic apparatus for maintaining atmospheric environments; spark arrestors being parts of machines; apparatus (machines) for filtering gases; apparatus for the condensing of solvent gases; compressors for recovering and recycling refrigerant gases; filters for hot gases for use with internal combustion engines; abrading tools for use with machines; abrasive discs (machine tools); abrasive tools being parts of machines; adapters for machine tools; air driven hand tools; air operated tools; air powered tools; apparatus for holding machine tools; apparatus for powering high frequency tools; automatic machine tools; automatic tool changing apparatus for machine tools; boring tools (machine tools); deburring tools (parts of machines); guns (tools using explosives); hand held power operated tools; machine tools for sale in kit form; machine tools for spark-eroding; machine tools for tube working; machine tools for use in connection with pipes; mechanical handling apparatus for use with machine tools; mechanical tools; motor driven tools
Owner
Aitken Enterprises Pty Ltd
Trade Mark
ULTIMARC
(‘Trade Mark’)
2. Unless otherwise indicated, any references to sections or regulations in this decision are references to sections or regulations of the Act or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.
3. Aitken Enterprises Pty Ltd (‘Opponent’) has opposed the application to remove the Trade Mark, filing a Notice of Intention to Oppose removal on 27 September 2022 along with his Statement of Grounds and Particulars (‘SGP’) on 24 October 2022. The Applicant filed a Notice of Intention to Defend on 6 December 2022.
The only evidence filed in this matter is the following:
Declarant and Position
Date
Annexures or Exhibits
Evidence in support
Michael John Bottomley (‘Bottomley declaration’)
15 March 2023
A to O
5. Once the time allowed for filing evidence had ended, the parties were given an opportunity to request an oral hearing or a hearing by written submissions. On 31 July 2023 the Applicant requested a hearing and paid the appropriate fee. The matter was set down for a hearing on 16 July 2024. The Opponent filed written submissions on 2 July 2024 (‘Opponent’s submissions’) and the Applicant filed written submissions on 9 July 2024 (‘Applicant’s Submissions’).
6. I am a delegate of the Registrar and the matter has been allocated to me to decide, which I have done, on the basis of the following relevant material and the evidence listed earlier in this decision:
·The Application for Removal;
·The Notice of Intention to Oppose and SGP;
·The Applicant’s and the Opponent’s oral and written Submissions.
The Relevant Provisions
7. Part 9 deals with removal of trade marks from the Register on account of non-use. In respect of this matter s 92 relevantly provides:
92 Application for removal of trade mark from Register etc.
(4)An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:
(a) any allegation made under paragraph 92(4)(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:
(i)to use the trade mark in Australia; or
(ii)to authorise the use of the trade mark in Australia; or
(iii)to assign the trade mark to a body corporate for use by the body corporate in Australia; in relation to the goods and/or services to which the opposed application relates (relevant goods and/or services);
in relation to the goods and/or services to which the non-use application relates and that the registered owner:
(iv)has not used the trade mark in Australia; or
(v)has not used the trade mark in good faith in Australia; in relation to those goods and/or services at any time before the period of one month ending on the day on which the non-use application is filed;
(b)that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:
(i)used the trade mark in Australia; or
(ii)used the trade mark in good faith in Australia;
in relation to the goods and/or services to which the application relates.
Note 1:For file and month see section 6.
Note 2:If non‑use of a trade mark has been established in a particular place or export market, then instead of the trade mark being removed from the Register, conditions or limitations may be imposed under section 102 on the registration of the trade mark so that its registration does not extend to that place or export market.
8. Under s 92(4)(b) the relevant period during which the Opponent must establish use of the Trade Mark is the three year period ending on 29 June 2022 (‘Relevant Period’).
9. I note that an application under s 92(4)(b) may not be made before a period of five years has passed from the filing date of the application,[1] and I confirm that five years since filing the application have in fact passed.
[1] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (sch 1, pt 3) as applies in the present matter. The updated s 93(2) applies to trade marks filed from 24 February 2019 onwards.
10. The onus of rebutting an allegation of non-use lies with the Opponent. This onus is articulated in s 100 which provides, relevantly to this matter:
100 Burden on opponent to establish use of trade mark etc.
(1) In any proceedings relating to an opposed application, it is for the opponent to rebut:
(a) any allegation made under paragraph 92(4)(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:
(i) to use the trade mark in Australia; or
(ii) to authorise the use of the trade mark in Australia; or
(iii) to assign the trade mark to a body corporate for use by the body corporate in Australia; in relation to the goods and/or services to which the opposed application relates ( relevant goods and/or services ); or
(b) any allegation made under paragraph 92(4)(a) that the trade mark has not, at any time before the period of one month ending on the day on which the opposed application was filed, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services; or
(c) any allegation made under paragraph 92(4)(b) that the trade mark has not, at any time during the period of 3 years ending one month before the day on which the opposed application was filed, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services.[…]
(3) For the purposes of paragraph 1(c), the opponent is taken to have rebutted the allegation that the trade mark has not, at any time during the period referred to in that paragraph, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services if:
(a) the opponent has established that the trade mark, or the trade mark with additions or alterations not substantially affecting its identity, was used in good faith by its registered owner in relation to those goods or services during that period; or
(b) in a case where the trade mark has been assigned but a record of the assignment has not been entered in the Register:(i) the opponent has established that the trade mark, or the trade mark with additions or alterations not substantially affecting its identity, was used in good faith by the assignee of the trade mark in relation to those goods or services during that period and that that use was in accordance with the terms of the assignment; and
(ii) the Registrar or the court is of the opinion that it is reasonable, having regard to all the circumstances of the case, to treat the use of the trade mark by the assignee during that period as having been a use of the trade mark in relation to those goods or services by the registered owner; or(c) the opponent has established that the trade mark was not used by its registered owner in relation to those goods and/or services during that period because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period.
11. I proceed on the basis that the standard of proof is the ordinary civil standard being on the balance of probabilities.[2]
[2] Pfizer Products Inc. v Karam [2006] FCA 1663 (Gyles J) and more recently: Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ) in respect of oppositions under s 52.
12. In accordance with s 101 I may decide to remove the Trade Mark from the Register for all or some of the services identified in the application for removal, or if satisfied it is reasonable to do so, decide not to remove the Trade Mark even if the grounds under which the application for removal was made are established.
13. The Applicant has applied for a partial removal of the Trade Mark and the goods that the Applicant seeks removal for are:
Apparatus for mechanised welding (other than electric); autogenous welding apparatus (gas operated); autogenous welding machines; electric machines for incandescent welding; electric machines for resistance welding; electric machines for spark welding; electric radiator welding machines; electric resistance welding machines; electric track welding machines; electric welding machines; electro fusion welding machines; gas welding apparatus; gas welding machines; gas welding machines; high frequency welding machines; hot air welding machines; machines for resistance welding (gas operated); machines for welding (electric); machines for welding (gas); machines for welding corners on PVC window frames; metal welding apparatus (gas); metal welding machines (electric); metal welding machines (gas); plasma welding apparatus (gas-operated); plasma welding machines; plastics welding machines; regulators for use in welding machines; robotic electric welding machines; robots for welding; single column welding presses; spot welding machines; thermal contact welding machines; thermal impulse welding machines; ultrasonic welding heads; ultrasonic welding machines; welding apparatus for TIG welding (gas-operated); welding apparatus operated by compressed air; welding apparatus operated by gas; welding apparatus operated by oxyacetylene; welding apparatus, electric (machines); welding apparatus, gas-operated; welding machines for thermoplastic tubes; welding machines for use in the jewellery trade; welding machines for welding plastics material; welding machines, electric; welding torches (gas-operated); wire welding machines; … apparatus (machines) for filtering gases; … adapters for machine tools; air driven hand tools; air operated tools; air powered tools;… automatic machine tools; automatic tool changing apparatus for machine tools;… hand held power operated tools; machine tools for sale in kit form; machine tools for spark-eroding;… machine tools for use in connection with pipes; mechanical handling apparatus for use with machine tools; mechanical tools; motor driven tools (‘Removal Goods’)
14. I further note that a single bona fide use of the Trade Mark in the course of trade during the relevant period may be sufficient to rebut the allegation under s 92(4)(b),[3] but if a single act of use is relied upon then it should be established by ‘if not conclusive proof, at any rate overwhelmingly convincing proof’.[4] Use of the Trade Mark by an authorised user (as defined by s 8) is taken to be use of the Trade Mark by the Opponent.[5]
[3] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).
[4] Nodoz Trade Mark (1962) RPC 1, 7 (Wilberforce J) (‘Nodoz’).
[5] Act s 7(3).
15. The principles regarding when a trade mark has been used as a badge of origin were recently summarised in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (‘Selfcare’), in which the High Court noted the following:
Use of a trade mark in relation to goods means use of a trade mark upon, or in physical or other relation to, those goods, and so can include use of the mark on product packaging or marketing such as on a website. There is a distinction, although not always easy to apply, between the use of a sign in relation to goods and the use of a sign as a trade mark. A trade mark is a sign used, or intended to be used, to distinguish goods dealt with by one trader from goods dealt with by other traders; that is, as a badge of origin to indicate a connection between the goods and the user of the mark.
Whether a sign has been "use[d] as a trade mark" is assessed objectively without reference to the subjective trading intentions of the user. As the meaning of a sign, such as a word, varies with the context in which the sign is used, the objective purpose and nature of use are assessed by reference to context. That context includes the relevant trade, the way in which the words have been displayed, and how the words would present themselves to persons who read them and form a view about what they connote. A well known example where the use was not "as a trade mark" was in Irving's Yeast-Vite Ltd v Horsenail, where the phrase "Yeast tablets a substitute for 'Yeast-Vite'" was held to be merely descriptive and not a use of "Yeast-Vite" as a trade mark. Therefore, it did not contravene the YEAST-VITE mark.
The existence of a descriptive element or purpose does not necessarily preclude the sign being used as a trade mark. Where there are several purposes for the use of the sign, if one purpose is to distinguish the goods provided in the course of trade that will be sufficient to establish use as a trade mark. Where there are several words or signs used in combination, the existence of a clear dominant "brand" is relevant to the assessment of what would be taken to be the effect of the balance of the label, but does not mean another part of the label cannot also act to distinguish the goods.[6]
[6] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [23]-[25] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (citations omitted).
Discussion
Sections 92(4)(a) and 92(4)(b) provide distinct and alternative grounds for removal. Because of the specifics of these provisions paragraph (a) is considered to effectively merge with paragraph (b) once a trade mark has been registered for five[7] years.[8] As the Trade Mark had been registered for more than five years as at the date of the application I need only consider the application for removal under s 92(4)(b) in this case. Therefore, to successfully oppose the application for removal the Opponent must establish that it has used the Trade Mark (or a substantially identical trade mark[9]) pursuant to s 100 (either through use or that there were circumstances that were an obstacle to use in the relevant period (per s 100(3)(c)).
[7] Or three years for trade marks filed from 24 February 2019 onwards. See changes made in the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1, pt 3.
[8] M Davison, I Horak Shanahan’s Australian Law of Trade Marks and Passing Off (7th edition, 2022 Thomson Reuters) [70.510].
[9] Act s 100(3)(a) and discussed in AgCare Biotech Pty Ltd v Crop Smart Pty Ltd [2009] ATMO 41, [10]-[21] (Hearing Officer Kirov).
If the Opponent fails to establish such use or an obstacle to use, I have discretion under s 101(3) to decide that the Trade Mark should not be removed from the Register. Use of the Trade Mark in the relevant period.
Use of the Trade Mark in the relevant period
The Bottomley declaration states that the Opponent purchased a welding supply business in 2009 called Ultimate Welding and Gas Supplies that had been operating since 2004. The Opponent maintained the cylinder rental portion of the business. Mr Bottomley attests that in or around 2009 the Opponent also began importing welding electrodes from Turkey. Accordingly, Mr Bottomley states that the Opponent was fond of the word ULTIMATE which is how the Trade Mark was developed. Annexure B to Bottomley contains undated photographs from packaging bearing the Trade Mark. Mr Bottomley asserts that the Trade Mark was used on the packaging in 2009 but that due to flooding of the Opponent’s Rocklea Office in 2011, it is unable to support its claims as paperwork was lost.
According to the Bottomley declaration, in or around September 2012, the Opponent commenced selling welding goods and consumables bearing the Trade Mark through its related entity Aitken Welding Supplies Pty Ltd (‘Aitken’). Mr Bottomley claims that over the last 10.5 years the Opponent has sold welding goods and consumables under the Trade Mark through Aitken which operates six stores in Australia.
In evaluating the Opponent’s evidence there is an important threshold determination that I make, namely that the majority of the exhibits are dated outside of the Relevant Period. Exhibits D, E, F, G, H, K, L and M contain exhibits which are dated either before or after the Relevant Period. Further to this, exhibit O is undated.
In considering the exhibits I am also confronted with the fact that very few of them actually demonstrate any use of the Trade Mark. Exhibit N contains undated screen shots of the AITKEN website which does have the Trade Mark located along the bottom of the webpage. However, it is unclear whether or not the Trade Mark has always been present and in use on these pages as I only have recent copies of the pages dated outside of the Relevant Period. There is also debate whether or not the use of an ULTIMARC trade mark in this exhibit would constitute use of the Trade Mark for the purposes of s 7. Exhibit N also contains a spreadsheet list of the goods the Opponent has sold under its Trade Mark but this spreadsheet does not appear to be dated. However, there are copies of invoices contained in the same exhibit which appear to be for the purchase of welding goods from Chinese manufacturers. These invoices are all dated after the 29 June 2022 and therefore, outside of the Relevant Period. None of the evidence in exhibit N persuades me that the Opponent sold the Removal Goods under the Trade Mark during the Relevant Period.
Additionally, exhibit I contains a copy of the flyer for the Beijing Essen Welding and Cutting which occurred June 25-28, 2019, which means it is dated before the Relevant Period. The trade expositions that the Opponent states they attended are all dated outside of the Relevant Period. While Mr Bottomley states that the Trade Mark has been continuously used since 2011, without documentation and evidence to support his comments they remain assertions which does not fulfil the onus placed upon the Opponent by s 100 of the Act as discussed above.
I find that there is no evidence before me that the Opponent has used the Trade Mark during the Relevant Period on the Removal Goods.
Obstacles to use
24. An Opponent to an application for removal may rebut an allegation of non-use by establishing that a failure to use the mark in the relevant three-year period was ‘because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period’. The circumstances must be ‘an obstacle to the use of the trade mark by the registered owner’.[10]
[10] Woolly Bull Enterprises Pty Ltd v Reynolds (2001) [2001] FCA 261, [47] (Drummond J)
The Opponent has claimed that during the Relevant Period, it was looking for welding machines that would be high quality and would meet Australian safety standards and that it would not apply the Trade Mark to an unsuitable product. To this end, the Bottomley declaration states they did test machines during the relevant period. The single instance I can find of the Opponent testing a welding machine it purchased from a Chinese supplier is contained within a set of emails dated in September 2020 and located in exhibit J. The emails between the parties indicate that the Opponent is testing a product but that the Opponent is not satisfied with it. There is no mention of the Trade Mark in the emails.
Additionally, the Opponent has argued that the Covid-19 pandemic impacted its business activities and that the Standards Australia Committee ME-001 published an updated edition of Australian Standard 1796 for the Welding Industry in June 2022, which brought several significant changes to the welding industry and caused the Opponent to re-evaluate the welding products which it was considering.
I acknowledge that the Covid-19 pandemic did impact many businesses activities and plans. However, there is nothing in the evidence before me that demonstrates or provides detail on how the pandemic impacted on the plans of the Opponent to sell the Removal Goods during the Relevant Period. The evidence demonstrates that the Opponent had the ability to view, purchase or test products for sale in Australia. Indeed, the Opponent tested a single product which was followed up by the manufacturer after a considerable period of silence on the Opponent’s part. None of this interaction rises to the level of a single, genuine commercial use of the Trade Mark in Australia as defined in Nodoz and Selfcare. Nor has the Opponent provided sufficient material to persuade me that this single instance of unsuccessful product testing proved to be an obstacle to use of the Trade Mark.
When I turn to the Opponent’s comments regarding the updated version of standard 1976 for the Welding Industry, I see it was updated in June 2022 which is the last month of the Relevant Period, so I am not persuaded it was an obstacle to prevent use during the almost three years preceding it. Nor has the Opponent detailed how the update actually interrupted its plans to sell the Removal Goods during the Relevant Period. It appears that the Opponent had not yet chosen or sourced any of the Removal Goods at that time.
I am not satisfied that the Opponent’s failure to use the Trade Mark was because of circumstances that were an obstacle to use pursuant to s 100(3)(c).
Registrar’s Discretion
30. To exercise the discretion in s 101(3) I must be positively satisfied that, despite the lack of use or obstacles to use, it is reasonable to not remove the Trade Mark in respect of the Registered Services.[11] The burden of persuasion falls in this regard falls on the Opponent.[12]
[11] Austin Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [44] (Jacobson, Yates and Katzmann JJ).
[12] Ibid.
31. The Opponent has referred me to CUB Pty Ltd (formerly Fosters Australia Ltd) v Elixir Signature Pty Ltd[13], and the factors to be considered when making a decision wither or not to exercise of the Registrar’s discretion were:
[13] [2013] ATMO 74 (Hearing Officer Windsor)
(a) There had been no abandonment of the trade mark;
(b) The registered proprietors of the mark still had a residual reputation in the mark;
(c) There had been sales by the registered proprietors for goods for which removal was sought since the relevant period ended;
(d) The applicants for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the mark; and
(e) The registered proprietors were not aware of the applicant’s sales under the mark.
32. The Opponent has argued that it has not abandoned the Trade Mark. The Opponent asserts it has invested time and money into developing the Trade Mark and has continuously expanded and improved their product line during the Relevant Period. However, I am not persuaded by this argument. The Opponent’s evidence is largely undated and the evidence which would be the most persuasive in establishing use is all dated after the Relevant Period and after the application for non-use had been filed be the Applicant. There is nothing in its evidence that demonstrates the Opponent had any commercially significant plans to launch products bearing the Trade Mark onto the Australian market during the Relevant Period. What the evidence does demonstrate is that the Opponent received the non-use application and then sought to acquire goods from overseas to sell in the Australian marketplace.
33. Without evidence to support the Opponent’s assertions, I do not consider it appropriate to exercise my discretion not to remove the Trade Mark in respect of any of the Removal Goods.
Decision
34. The Opponent has not established its opposition to removal. Accordingly, I direct that registration number 1514027 be removed from the Register one month from the date of this decision for the Removal Goods being:
Apparatus for mechanised welding (other than electric); autogenous welding apparatus (gas operated); autogenous welding machines; electric machines for incandescent welding; electric machines for resistance welding; electric machines for spark welding; electric radiator welding machines; electric resistance welding machines; electric track welding machines; electric welding machines; electro fusion welding machines; gas welding apparatus; gas welding machines; gas welding machines; high frequency welding machines; hot air welding machines; machines for resistance welding (gas operated); machines for welding (electric); machines for welding (gas); machines for welding corners on PVC window frames; metal welding apparatus (gas); metal welding machines (electric); metal welding machines (gas); plasma welding apparatus (gas-operated); plasma welding machines; plastics welding machines; regulators for use in welding machines; robotic electric welding machines; robots for welding; single column welding presses; spot welding machines; thermal contact welding machines; thermal impulse welding machines; ultrasonic welding heads; ultrasonic welding machines; welding apparatus for TIG welding (gas-operated); welding apparatus operated by compressed air; welding apparatus operated by gas; welding apparatus operated by oxyacetylene; welding apparatus, electric (machines); welding apparatus, gas-operated; welding machines for thermoplastic tubes; welding machines for use in the jewellery trade; welding machines for welding plastics material; welding machines, electric; welding torches (gas-operated); wire welding machines; … apparatus (machines) for filtering gases; … adapters for machine tools; air driven hand tools; air operated tools; air powered tools;… automatic machine tools; automatic tool changing apparatus for machine tools;… hand held power operated tools; machine tools for sale in kit form; machine tools for spark-eroding;… machine tools for use in connection with pipes; mechanical handling apparatus for use with machine tools; mechanical tools; motor driven tools
35. If the Registrar is served with a notice of appeal before then I direct that removal shall not occur until the appeal has either been discontinued or, in the event of a decision from the Court, that the registration be dealt with as the Court sees fit.
Costs
36. The Applicant has been successful in relation to the application for partial removal of the Trade Mark and has requested its costs. I accordingly award costs against the Opponent under s 221 in the relevant amounts under Schedule 8 of the Regulations.
Bianca Irgang
Hearing Officer
Delegate of the Registrar of Trade Marks
25 September 2024
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