Apco Service Stations Pty Ltd v Ampol Management Services Pte Ltd - [2023] ATMO 165

TRADE MARKS ACT 1995

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

Re:Opposition by Apco Service Stations Pty Ltd to registration of trade mark application numbers 2071142 ‘Leaning A’ Device; 2086076 ‘Leaning A’ series mark; and 2086077 AMPOL series mark (all in classes 1, 3, 4, 7, 9, 12, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40, 42 and 43) - in the name of Ampol Management Services Pte Lrd.

Delegate:

Nicole Worth

Representation:

Opponent: Ian Horak, counsel, instructed by Phillips Ormonde Fitzpatrick

Applicant: Frances St John, counsel, instructed by Herbert Smith Freehills

Decision:

2023 ATMO 165

Trade Marks Act 1995 (Cth) – opposition under section 52 – grounds of opposition under ss 44, 60 and 42(b) – no grounds established – trade marks may proceed to registration

Background

This decision is pursuant to the opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] (‘Act’) by Apco Service Stations Pty Ltd (‘Opponent’) to registration of the following three trade marks, all in the name of Ampol Management Services Private Limited Company (‘Applicant’).
[1] All references to a section in this decision are references to a section of the Trade Marks Act 1995 (Cth) and all references to a regulation in this decision are references to a regulation of the Trade Marks Regulations 1995 (Cth), unless otherwise stated.

(‘Leaning A Device’) (‘Leaning A Series Mark’) (‘Ampol Series Mark’)

Application no. 2071142 Application no. 2086076 Application no. 2086077

Priority date: 2 March 2020 Priority date: 5 May 2020 Priority date: 5 May 2020

Endorsement: 1. Red and blue 2. White on a red background 3. White on a black background 4. Black on a white background. Endorsement: 1. Red and blue 2. White on a red background 3. White on a black background 4. Black on a white background.

Classes: 1, 3, 4, 7, 9, 12, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40, 42 and 43.

The full specifications of goods and services is listed at Appendix A of this decision.

The applications were filed on 2 March 2020 and 5 May 2020, as per the priority dates shown in the table above. They were examined in accordance with s 31 and accepted for possible registration. The acceptance of the trade marks was advertised in due course, after which the Opponent filed Notices of Intention to Oppose followed by Statements of Grounds and Particulars (‘SGPs’).
The parties filed evidence in due course. The Applicant disputes whether the Opponent’s evidence in reply is properly ‘in reply’. In response it filed additional evidence of its own. These matters are discussed later in this decision.
The parties requested a hearing which was allocated to me, a delegate of the Registrar of Trade Marks. I heard the opposition on 1 August 2023. Mr Ian Horak of counsel, instructed by Phillips Ormonde Fitzpatrick, made oral and written submissions on behalf of the Opponent. Ms Frances St John of counsel, instructed by Herbert Smith Freehills, made oral and written submissions on behalf of the Applicant.

Grounds, onus and standard of proof

The SGPs nominated grounds of opposition under ss 44, 60 and 42(b). In order to succeed in its opposition, the Opponent bears the onus of establishing at least one of the grounds of opposition.[2] If it does so, there is no requirement for the Registrar to consider the remaining grounds.
[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[3] The dates at which the rights of the parties are to be determined are 2 March 2020 in respect of the Leaning A Device and 5 May 2020 in respect of the Leaning A Series Mark and the Ampol Series Mark, being both the filing and priority dates of the Trade Marks.[4]
[3] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [2], wherein Kitto J stated that the rights of the parties are determined as at the date of the application.

Evidence

Declarations by the following people have been filed in these oppositions.
Evidence in support
(a) Declaration and annexures of Robert Anderson, director of the Opponent, made 22 June 2021 (Anderson).
Supporting declarations by service station operators
(b) Declaration and annexure of Swetha Sammidi made 21 June 2021.
(c) Declaration of Tracey Browning made 22 June 2021.
(d) Declaration and annexure of Wayne Howe made 22 June 2021 (Howe).
(e) Declaration and annexure of Rafiuddin Mohammad made 22 June 2021.
(f) Declaration and annexure of Abs Erdogan made 22 June 2021.
(g) Declaration and annexure of Lewis Nabati made 22 June 2021.
(h) Declaration and annexures of Aleesa Stafford made 22 June 2021.
Evidence in answer
(a) Declaration and annexures of Christopher Graeme Miller, senior corporate counsel of the Ampol Limited, an entity related to the Applicant, made 24 September 2021 (Miller).
Evidence in reply
(a) Declaration and annexures of Aleesa Stafford made 29 November 2021 (Stafford 2).
(b) Declaration and annexures of Brent Coker made 30 November 2021 (Croker) – not admitted.
Additional evidence
Declaration and annexures of Paul Lindsay Blanket made 1 July 2022 (Blanket) – not admitted.

Evidence not in reply and Applicant’s additional evidence

As a preliminary matter I will address evidence that was filed by the Opponent as evidence in reply and evidence that was filed by the Applicant in response.
The Opponent filed a second declaration of Aleesa Stafford, one of the Opponent’s service station operators, and a declaration of Brent Coker, an expert in marketing and consumer behaviour, as evidence in reply. The second Stafford declaration attests to further alleged instances of confusion that had occurred since the first Stafford declaration. The Coker declaration gives expert opinion as to the likelihood of confusion between the parties’ trade marks.
The Applicant objected to these declarations on the basis that neither of them were in reply to the matters raised in its evidence in answer, and in particular that the Coker declaration should properly have formed part of the Opponent’s evidence in support. The Applicant asserted that by filing it as evidence in reply, the Applicant was deprived of the opportunity to respond to it. To that end the Applicant filed a declaration of Paul Blanket, an expert in branding, to give the countervailing view to the Coker declaration.
The Registrar is not bound by the rules of evidence, and therefore there is a degree of latitude regarding what may be considered in opposition proceedings, as long as procedural fairness is maintained. At the same time the IP Australia Trade Marks Office Manual of Practice and Procedure (‘the Manual’) says of evidence in reply ‘By definition such evidence must be limited to issues raised in the evidence in answer’.[5] Where possible parties should be able to rely upon what is written in the Manual, although this must be balanced with court and office authority that the Registrar is not compelled to exclude information, even if filed out of time or not properly constituting evidence in reply:
Generally speaking, it would not be proper or fair for an administrative decision-maker to ignore relevant material while discharging his or her statutory duty. As a result, when the Registrar is required to decide whether a mark qualifies for registration, the Registrar is not entitled to disregard evidence which bears upon that question.[6]
[5] Part 51, [1.3].
[6] Malibu Boats West Inc v Catanese [2000] FCA 1141, [24] (Finkelstein J).
I note also the comments of the Registrar’s delegate below, pointed out by the Opponent, although I consider it relevant that in that matter the delegate was not considering the evidence in its entirety but rather deciding whether or not to redact evidence for the hearing officer to whom the substantive matter would eventually be allocated.
The Registrar is not, as a matter of law, compelled to exclude evidence which does not properly constitute evidence in reply. Hence, where evidence is filed in time it is generally objected to on the basis of its probative value rather than its admissibility.[7]
[7] MBIP Nominees v Meeka Pty Ltd [2018] ATMO 188, [27] (Hearing Officer Brown).
The delegate had also made previous comments in the same decision that:
Evidence in reply is an opponent’s opportunity to reply to an applicant’s evidence in answer. By its very definition, evidence in reply should be limited to replying to issues canvassed in the evidence in answer.
As pointed out by the Applicant, evidence in reply should not be treated as an opportunity to rectify deficiencies in an opponent’s case.[8]
[8] Ibid [21]-[22].
Here, I am not persuaded that the Coker declaration should be admitted into proceedings. It does not respond to issues raised in the evidence in answer, but rather goes to the fundamental question of likelihood of confusion, an issue identified at the start of proceedings in the SGPs. The Opponent itself describes it as being relevant to ‘a central broad issue between the parties’. There is no reason given, such as unanticipated issues raised in the evidence in answer or a lack of availability of a suitable expert, as to why the expert evidence was not included in the Opponent’s evidence in support.
More importantly though, I am not persuaded that the Coker declaration is of significant assistance to me as a delegate of the Registrar of Trade Marks. The question of whether or not ordinary consumers of every-day goods and services are likely to be confused is one upon which the Registrar can make her own determination, little assistance is to be gained from the opinion of experts.[9] I therefore have not considered the Coker declaration in my determination of the opposition. Because I have not considered the Coker declaration, there is no denial of natural justice by refusing to consider the Blanket declaration, filed as additional evidence in response. I therefore confirm that I have not considered the Blanket declaration either.
[9] Kraft Foods Group Brands LLC v Bega Cheese Ltd (No 8) [2019] FCA 593, [418]-[419] (O’Callaghan J), citing Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247, [20]-[22] (Wilcox, Heerey and RD Nicholson JJ); Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133, [55] (Branson J); General Electric Co v General Electric Co Ltd [1972] 1 WLR 729 at 738 (Lord Diplock); and Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd(No 8) [2008] FCA 470, [51] (Heerey J).
As to the second Stafford declaration, whilst it is not in response to the evidence in answer it is nonetheless evidence of potential confusion that was not available until after the Opponent’s initial evidence had been filed. Given its relevance to the question of whether actual instances of confusion have occurred, the second Stafford declaration should be admitted in order to give as full a determination as possible. I have therefore taken the second Stafford declaration into consideration in determining the opposition.

The Opponent’s evidence

The Opponent’s business commenced in 1968. It began as an independent wholesale and retail petrol distributor in Warrnambool under the name Anderson Petroleum Company, which later became APCO (precisely when is not stated).
It is declared that the first logo below (‘the Opponent’s trade mark’) was designed in the early 1970’s and used by the business since that time, although I note that the earliest annexures[10] show a somewhat different logo, as seen in the second and third images (the third image is not clear, although it appears in close proximity to the words APCO EASY SHOP so I take it to read APCO).

[10] Anderson, Annexures RA-5 and RA-6.

Nonetheless, annexures RA-9 and RA-10 of Anderson, shown below, demonstrate that substantially identical trade marks to the first logo shown above were used at least as far back as dates declared to be 1989 and/or 1990 (and the cars and petrol prices depicted in the annexures appear to be from that era).

I note also that the SGPs refer to the Opponent’s registered trade mark in Australia, number 1063583, details of which are shown below.
Trade mark:
Priority date: 6 July 2005
Goods and services:
Class 4: Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit) and illuminants; candles, wicks
Class 35: Advertising; business management; business administration; office functions; retailing and wholesaling services; vehicle service station retailing
Class 37: Vehicle service stations; fuelling, lubrication and maintenance of vehicles and transport equipment; vehicle washing and polishing; vehicle cleaning and detailing
In early 1981 the Opponent built a complex in Warrnambool incorporating a petrol depot, service station and convenience store called the APCO EASY SHOP. This was allegedly an innovation in Australian service stations, which prior to then had sold only a limited range of motoring relating products, drinks and snacks. The APCO EASY SHOP was designed to be a ‘drive-in milk bar’ and the complex allegedly represented a significant change to the normal service station offering.
Further APCO service stations were progressively opened at new sites across regional Victoria and most recently southern New South Wales. They are a mixture of company operated, franchised and licensed businesses. There are now 24 service stations in Victoria and two in New South Wales, as listed below along with the year in which they opened.
Warrnambool: opened 1981
Newcomb: opened 1983
Nth Geelong: opened 1986
East Geelong: opened 1989
Bendigo, Kangaroo Flat: opened 1990
Barwon Heads: opened 1991
Ballarat, Main Road: opened 1993
Bendigo, Strathdale: opened 1994
Hoppers Crossing: opened 1995
South Geelong: opened 1995
Ballarat, Skipton Street: opened 1996
Lara: opened 1996
Highton: opened 1997
Epping: opened 2000
Bacchus Marsh: opened 2000
Wangaratta: opened 2000
Cranbourne North: opened 2001
Cranbourne West: opened 2005
Albury North: opened 2006
Bairnsdale: opened 2009
Mildura: opened 2010
Thomastown: opened 2012
West Wodonga: opened 2014
Shepparton: opened 2015
Grovedale: opened 2017
Wagga Wagga: opened 2020
All of the service stations are 24-hour convenience store facilities offering fuel, food service, coffee, top up shopping and convenience items. Different APCO service stations also provide other offerings including IGA or IGA Express grocery stores, barista, ‘drive thru’ coffee service, fast flow diesel and hand car washing.
To celebrate its 40^th year of operation, in 2008 the Opponent produced two videos which outline the history of the business. The videos were shown at an APCO Christmas party attended by people involved with APCO including retail partners, company staff and important business associates. The videos show historic advertising and coverage of the business in local newspapers, television advertisements from the 1980’s and 1990’s, and coverage in the program A Current Affair from the early 2000’s with related press clippings from a local newspaper dated 2007.
It is declared that all APCO service stations are situated on major roads, selected primarily due to high levels of motor traffic (both transient and local traffic flow), and have been purpose built or redeveloped by the Opponent. It is also declared that the APCO service stations use consistent livery, and the Opponent applies a standardised style guide, created in 2014, which has been applied to every service station opened since that time (whilst older stations have been refurbished). One of the features of the APCO livery is the Opponent’s trade mark. The Opponent’s trade mark appears on service station canopies, freestanding ‘ID’ price boards, trucks, consumer products such as oil and lubricants, and various promotional items. Examples of more modern signage and livery are shown below.[11]

[11] Anderson, Annexures RA-11 and RA-15.

Fuel sales per site since 2012 are provided, as are numbers of customer transactions per site and average daily customer transactions per site for the years 2019 to May 2021. For most sites the figures are very substantial.
The Opponent’s declarant, Mr Robert Anderson, describes learning in 2019 that Caltex Australia was to rebrand its business to Ampol, a name that as far as he was aware had not been used for more than the past two decades. In mid-2020 the newly renamed Ampol published details on its proposed new service station livery which included the blue and red versions of the Leaning A Series Mark and Ampol Series Mark. Mr Anderson declares to have become immediately concerned that confusion between APCO and Ampol services was likely, on account of the use by Ampol of an ‘A’ logo in the colours red and blue in circumstances where APCO had allegedly been the only service station business in Australia which ‘used anything like an ‘A’ logo, let alone in colours red and blue.’
A sound recording is in evidence of a 2020 radio advertisement for Ampol played in the Geelong region, which refers to the ‘red and blue A’. It is not stated how frequently this radio advertisement was heard.
The Opponent’s legal representatives wrote to Ampol setting out the above concerns in writing, and Ampol’s legal representatives replied denying a likelihood of confusion as a result of its rebranding.
Mr Anderson declares that his fears have been confirmed through a number of instances of alleged confusion, wherein customers have attempted to pay for transactions at APCO service stations using an Ampol card or an NRMA app allowing discounts at Ampol (shown in advertisements below).[12]

[12] Taken from, respectively, Anderson, Annexure RA-18 and Howe, Annexure WH-2.

Several operators of APCO service stations provide supporting declarations (see list of declarations under Evidence in support) attesting to such instances of alleged confusion. Each of them has attested to customers attempting to pay for petrol at APCO service stations using Ampol cards (and one with the NRMA app), only to be informed that the service station was APCO and not AMPOL. Stafford 2 states these instances have increased since the first Stafford declaration was filed, with one customer explaining that Ampol gift cards were being provided by a welfare agency. Stafford 2 estimates that at least 5 such instances occurred each week in the three months prior to the declaration, although specific details have been provided in relation to only two instances.
Mr Anderson gives his opinion that as more Caltex stations are rebranded, confusion will only increase. He states his concern that a consumer seeing an AMPOL logo, particularly from a distance (and potentially only fleetingly and peripherally) is likely to mistake it for an APCO service station and already commit to stopping there, even if they subsequently realise that they are at an AMPOL station rather than an APCO one.

The Applicant’s evidence

The Applicant’s[13] commercial operations in Australia date back to 1900 through ‘The Texas Company’, which later became Texaco and CalTex.
[13] The Applicant is one of a group of related entities. In this decision I refer to all entities in the Applicant’s group, and its declarant Mr Christopher Miller, as ‘the Applicant’, distinguishing where necessary.
The Ampol brand arose from the incorporation of the Australian Motorists Petrol Company in March 1936. The company became the first oil company in which Australians could buy shares, being listed in 1948. In 1949 it changed its name to Ampol Petroleum Ltd.
The Applicant is now the largest branded petrol and convenience network in Australia and has become the largest transport fuels company listed on the Australian Securities Exchange.

The first trade mark for AMPOL was filed on 27 March 1941 and remains registered under Australian registration number 77845. Multiple other registrations containing or comprising AMPOL remain registered in Australia, although the subject applications are the only trade marks of the Applicant which contain or comprise the abstract leaning A.
In 1989 the Applicant released its ‘As Australian as Ampol’ television advertisement campaign which the Applicant’s declarant, Mr Christopher Miller, describes as ‘iconic’. It also released a ‘True-Blue Australian’ booklet detailing the history of Ampol in Australia, although the extent to which these booklets were distributed is not stated.
In May 1995 Ampol Petroleum Ltd and Caltex Oil (Australia) Pty Ltd merged to form Australian Petroleum Pty Ltd. By that time Ampol held an approximate 13% market share in the petroleum industry with ‘hundreds’ of retail fuel stations across Australia under the AMPOL brand. The Applicant commenced a process to rebrand all sites of the combined entities to AMPOL, which together amounted to an approximate 30% market share in the petroleum industry. The slogan ‘Proudly Australian’ was also used, declared to be because the two companies had decided the AMPOL brand was synonymous with Australian ownership.
In 1997 the merged entity changed its name to Caltex Australia Limited, and in the years that followed most sites were rebranded to CALTEX. Some fuel station sites retained the AMPOL branding, and as at 12 March 2021 ten such sites remained in country areas of Queensland, New South Wales, South Australia and Western Australia.
In December 2019, the Applicant announced the full return of the AMPOL branding and in 2020 phasing out of the Caltex brand began. As at the date of the Miller declaration the Applicant was in the process of rebranding over 1,900 sites in Australia to AMPOL, with 570 sites having already been rebranded. A press release regarding the rebranding from the then-CEO stated that market research ‘confirms that Ampol continues to be regarded as a high-quality and trusted brand by Australian consumers across our key customer segments’.[14]
[14] Miller, Annexure CGM-14.
The Applicant’s branding has evolved through time. Upon inception the Australian Motorists Petrol Company used an ‘AMP’ logo, which evolved to AMPOL prior to company’s change of name in 1949. Since first use the Applicant declares that the AMP and AMPOL branding has consistently used a combination of red, white and blue colours. Undated, although clearly historical, photographs show AMP and AMPOL bowsers in those colours. The letter A of AMPOL has also consistently been differentiated, shown below in examples of the evolution of the letter A.[15]

[15] The first three images taken from Miller, Annexure CGM-9, the fourth taken from Miller at paragraph [24].

The Applicant declares that a key focus of its branding since inception has been the ‘Australian owned’ aspect, to which the use of red, white and blue pay tribute, being the colours of the Australian flag. Two confidential documents, a Corporate Identity Manual from 1989 and Visual Standards Manual from 1995,[16] detail the use of the tri-colour combination. The Applicant declares to have invested significant resources into a brand identity project, the aim of which was to capture the distinctive heritage brand elements in a modern brand identity. Its current branding, including the subject trade marks, pays homage to the ‘leaning A’ and tri-colour combination of red, white and blue.
[16] Miller, Confidential Annexures CGM-12 and CGM-13.
Mr Miller gives his opinion that none of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark are confusingly similar to the Opponent’s trade mark. He states further that the brand AMPOL and its use of the red, white and blue colour scheme predate the Opponent’s use of these colours by at least 27 years. He additionally points out that there are numerous petroleum suppliers in Australia which utilise the same tri-colour combination, including Mobil (with around 200 service stations in Australia), United Petroleum (with around 500 services stations in Australia) and Liberty Oil (with around 200 service stations in Australia). Examples of use of the tri-colour combination by these traders are shown below.[17]

[17] Miller, Annexure CGM-19.

The Applicant also exhibits a list of 73 fuel brands in Australia, which show that a further four brands have logos in the colours red, white and blue, shown below.[18]

[18] Miller, Annexure CGM-19.

Section 44

Section 44 relevantly provides:
44 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.
(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.
The Opponent relies upon its registered trade mark in order to establish the ground. To succeed under s 44 the Opponent must show that it’s trade mark has a priority date earlier than the priority dates of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark; that the goods and services of its trade mark are similar or closely related to those of the Applicant’s trade marks; and that its trade mark is deceptively similar to the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark (the Opponent does not push substantial identity).
The Applicant does not pursue the application of sub-ss 44(3) or 44(4).
The priority date of the Opponent’s trade mark is 6 July 2005, approximately 15 years prior to any of the priority dates of the Applicant’s trade marks. The Applicant concedes that the goods and services listed in its applications broadly encompass those of the Opponent’s registration. The remaining matter is therefore whether the parties’ trade marks are deceptively similar.
Generally, the usual approach of the Registrar in cases of multiple impugned trade marks is to determine the similarity of the trade mark with the least differentiating characteristics first, on the premise that if the first trade mark is not deceptively similar then neither will be the remaining impugned trade marks. Here, however, the Opponent asserts that the parties’ respective colour schemes and the similarity of the words APCO and AMPOL increase the potential for confusion. For that reason, I discuss each of the Applicant’s trade marks separately.
The accepted test of deceptive similarity is that articulated by Windeyer J in Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd:
On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's [trade mark].[19]
[19] [1963] HCA 66, [13].
I consider that the impression of the Opponent’s trade mark is quite different to that of the Leaning A Device. The Opponent’s trade mark is comprised of an isosceles triangle containing the word APCO and a shape evocative of the letter A overlaid with what could be interpreted as a different shape evocative of an A or as a backwards numeral 4. It is a relatively busy logo with numerous elements. The Leaning A Device, on the other hand, is comprised only of two thick lines, one vertical and one diagonal, which meet at the top. Without other contextual information, such as the proximate appearance of the name AMPOL, it is not necessarily likely to be recognised as a letter A at all. It is a simplistic, abstract image. For these reasons I do not consider the Leaning A Device is deceptively similar to the Opponent’s trade mark.
The Leaning A Series Mark makes explicit the colours in which the Applicant’s trade marks are expected to be used. Notionally, the Opponent may use its trade mark in any colours including the same as those identified in the Leaning A Series Mark. As will be discussed in respect of s 60, the parties do in fact use a similar colour scheme (although with differences in shade and proportion of colours). I bear in mind also that consumers’ selection of a service station is largely decided on convenience and price, often with only fleeting and/or peripheral glances at the actual trade marks the service station operates under. However, even bearing these factors in mind I am not persuaded that they outweigh the substantial differences in the parties’ trade marks. They are simply too different to be considered likely to cause confusion, even in the event that they are used in similar colours.
The Ampol Series Mark, in addition to being presented in similar colours, contains the word AMPOL which the Opponent contends is comprised of similar letters to its name APCO (such that the words are visually and aurally similar), is positioned similarly to APCO in the Opponent’s trade mark and is written in similar font. Whilst I acknowledge there are elements of the words that are the same, being that they are words are of similar length, beginning with the letter A and containing both letters P and O, I consider that this is where their similarity ends. The words are pronounced quite differently. The two syllables of APCO are divided by a hard separation of sounds – the transition from P to C being quite defined. APCO also contains a hard C and ends is a long O sound. On the other hand, the transition from the first to the second syllable in AMPOL is a softer sound owing to the presence of the letter M immediately prior to P. The word also contains a short O sound rather than a long O, and terminates in the letter L.
Additionally, the graphic elements of the Ampol Series Mark and the Opponent’s trade mark are quite different. The presence of the word AMPOL more clearly suggests that the device element of the Ampol Series Mark is an abstract form of the letter A, particularly as the angle of the left leg of the A in AMPOL reinforces the angle of the device. However, it remains a simplistic graphic device that is quite unlike the triangle containing overlaid letters A in Opponent’s trade mark. Even in combination with the word AMPOL in a similar position as APCO in the Opponent’s trade mark, the Ampol Series Mark does rise to the standard of deceptively similar to the Opponent’s trade mark.
In terms of s 10, I am not satisfied that any of the Leaning A device, the Leaning A Series Mark or the Ampol Series Mark so closely resemble the Opponent’s trade mark that they are likely to deceive or cause confusion. The ground of opposition under s 44 therefore fails.

Section 60

Section 60 provides (notes omitted):
60 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) another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, 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.
The Opponent must therefore satisfy two limbs: first, that its trade mark had a reputation in Australia before the priority date of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark; and second, that because of that reputation, use of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark would be likely to deceive or cause confusion. It is therefore a comparison of the actual use of the Opponent’s trade mark with a notional use of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark. The Opponent’s trade mark is reproduced again below for convenience.

For the purposes of s 60 ‘reputation’ is ‘the recognition of the [trade mark] by the public generally’.[20] It has also been expressed as recognition of the other trade mark by a ‘significant’ or ‘substantial’[21] number of people or potential consumers. Reputation cannot be assumed; it must be established as a matter of fact by the Opponent.[22] In Rodney Jane Racing Pty Ltd v Monster Energy Company it was observed that:
The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally.[23]
[20] McCormick & Company Inc v McCormick [2000] FCA 1335, [81] (Kenny J) (‘McCormick’).
[21] Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170, [75] (Moore, Tamberlin and Goldberg JJ).
[22] ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159, [77] (Lockhart J).
[23] [2019] FCA 923 [83] (O’Bryan J).
In McCormick & Company Inc v McCormick Kenny J further explained:
In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[24]
[24] McCormick (n 19) [86].
I am satisfied that the Opponent’s trade mark had a reputation in respect of the sale of petroleum and goods and services related to the operation of services stations, prior to the earliest relevant priority date, being 2 March 2020. The Opponent has operated service stations under the name APCO since at least as early as 1981, and the Opponent’s trade mark has been used in the form shown above since at least as early as 1989 or 1990. As at 2 March 2020 it had 24 service stations and convenience stores in operation in regional Victoria and one in southern New South Wales (the Wagga Wagga service station had not yet opened).[25] It has advertised its trade mark via street signage (a primary form of advertising for petrol stations) and by way of television and print advertising. The business has completed significant numbers of transactions and generated substantial revenue from the sale of fuel under the Opponent’s trade mark.
[25] For completeness I mention that the localised reputation of the Opponent’s trade mark is sufficient for the purposes of s 60(a): see for example Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd [2017] FCAFC 83, [61] (Greenwood, Jagot and Beach JJ).
As to whether deception or confusion is likely to occur on account of that reputation, I note first the instances of alleged confusion that have taken place. Bearing in mind that they contain varying degrees of detail, the supporting declarations in the evidence in support, as well as Stafford 2 in the evidence in reply, all describe instances wherein customers have attempted to pay for fuel at APCO service stations using an Ampol card (and one using the NRMA app), believing the service station to be one of the Applicant’s. This is not confusion caused by the reputation of the Opponent’s trade mark. This is more likely to be confusion caused by the reputation and recognition of the Applicant’s service stations – the Applicant having a network of some 1,900 services stations, 570 of which had been rebranded by the date of the Miller declaration, and previous long standing use of the colours blue, red and white (from which residual reputation in Australia may well still exist). This so-called ‘reverse confusion’ is not relevant under s 60.[26]
[26] Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd and Another [2003] FCA 901, [111]-[112] (Bennett J).
The Applicant has not stated whether or not it is aware of any confusion, and the Opponent submits it may therefore be inferred that the Applicant could not attest to being unaware of any confusion. I do not make this inference. The onus rests upon the Opponent, and I do not take the Applicant’s lack of statement as cover for confusion it is aware has occurred.
In considering the likelihood of confusion, I bear in mind that under s 60 it need not be shown that the trade marks in question are deceptively similar or that the parties’ goods and/or services are similar or closely related. However, as noted in Roger Seller & Myhill Pty Ltd v Reece Pty Ltd:
Confusion can not arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent’s trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.[27]
[27] [2010] ATMO 5, [39] (Hearing Officer Lyons) (emphasis in original).
Here, many of the specified services are identical to those of the Opponent, being services involved in the operation of service stations. However as discussed under s 44, the parties’ trade marks are, in my estimation, quite different such that it is unlikely one would be mistaken for the other. The dissimilarity of the parties’ trade marks is not bridged by the reputation of the Opponent’s trade mark (as opposed to the reputation of the Applicant’s service stations).
I note the Opponent’s submission that it was, until the rebranding of AMPOL service stations, the only provider of service stations to use a triangular logo. However, I do not consider the low level of resemblance to a triangle of the Applicant’s trade marks a sufficient basis to conclude confusion is likely. I consider potential confusion more likely to arise on account of the similar colour scheme used by the parties and the low level of attention paid by consumers to the actual trade marks under which service stations operate. However as shown in the Applicant’s evidence, that colour scheme is relatively common and the Applicant’s own use of it predates the Opponent’s.
The Opponent further submits that confusion could also occur on the basis of a mistaken belief that there was some form of association conveyed by the parties’ trade marks, such as a licensing arrangement between the parties or that one was a different store or variant embarked on by the Opponent’s business. I consider this only a tenuous possibility, and not one that is based upon a reputation of the Opponent’s trade mark (as opposed to an abstract consideration of similarity).

I am accordingly not satisfied that because of the reputation of the Opponent’s trade mark, the use of the Leaning A Device, the Leaning A Series Mark, or the Ampol Series Mark, is likely to deceive or cause confusion.
The ground of opposition under s 60 therefore fails.

Section 42

The ground of opposition under s 42 is based on the allegation that use of the Applicant’s trade marks would be contravene s 18 of the Australian Consumer Law (‘ACL’), which relevantly states at subsection (1):
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
The Opponent must satisfy the Registrar that use of the Trade Mark would, not could, be contrary to law.[28] As observed in Primary Health Care Limited v Commonwealth of Australia:
It is not enough for a party opposing registration to show that s 18 of the [Australian Consumer Law] or s 52 of the [Trade Practices Act 1974] might be contravened. The opponent must prove, on the balance of probabilities, that the provision would be contravened by use of the trade mark.[29]
[28] Advantage-Rent-A-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683. [28] (Madgwick J).
[29] [2017] FCAFC 174, [411] (Rangiah J) (emphasis in original).
The relevant provision of the ACL requires that I be satisfied that there is a likelihood that relevant consumers would be misled or deceived as to the true origin of the Applicant’s goods and services or as to them having some connection with the Opponent. This is a stricter requirement than s 60 which only requires conduct that would be likely to deceive or cause confusion.
As already indicated in respect of s 60, I am not satisfied that use of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark is likely to cause deception or confusion. It follows that, on the stricter test posited by the ACL, I am not satisfied that use of the Leaning A Device, the Leaning A Series Mark or the Ampol Series Mark is likely to mislead or deceive.
Accordingly, the ground of opposition under s 42(b) has not been established.

Decision and Costs

Section 55 relevantly provides:
Decision
(1) Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:
(a) to refuse to register the trade mark; or
(b) to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;
having regard to the extent (if any) to which any ground on which the application was opposed has been established.
Note: For limitations see section 6.
The Opponent has failed to establish any of the grounds of opposition it nominated in the SGPs. Trade mark application numbers 2071142, 2086076 and 2086077 may proceed to registration not less than one month from the date of this decision. If the Registrar is served with a notice of appeal before that time, I direct that registration shall not occur until either the appeal is withdrawn or discontinued. Otherwise, the disposition of the applications should be in accordance with the Court’s order or direction.
The Applicant has sought an award of costs in its favour. I see no reason to depart from the general rule that costs follow the event. Accordingly, in respect of the opposition to trade mark 2071142 I award costs against the Opponent under s 221 in the relevant amounts under Schedule 8 of the Trade Marks Regulations 1995 (Cth). For the oppositions to trade marks 2086076 and 2086077 I award costs against the Opponent under s 221, to be taxed in the same manner as Hume Industries (Malaysia) Berhad v James Hardie & Coy Pty Ltd.[30]
[30] [2001] ATMO 78 (Hearing Officer Williams).

Nicole Worth

Hearing Officer

Delegate of the Registrar of Trade Marks

26 October 2023

APPENDIX A

Goods & Services

Trade Mark Application Number 2071142 (‘Leaning A Device’)

Class 1: Chemicals for use in the petrochemicals industry; Unprocessed plastics; Gas for industrial use; Unprocessed artificial plastics; Unprocessed artificial resins; Hydraulic fluid; Petrol additives (chemical); Petroleum dispersants; Chemical additives for petroleum products; Hydraulic brake fluid; Petroleum derivatives; Hydrogen

Class 3: Automotive waxes; Turpentine for degreasing; Detergents for cleaning use (other than as part of manufacturing operations)

Class 4: Petrol; Petrol additives (petrochemical); Fuels; Biomass fuels; Liquid fuels; Gas fuels; Hydrocarbon fuels; Solid fuels; Automotive lubricants for car engines; Lubricants; Lubricants for motor vehicles; Engine oils; Electricity (energy); Electrical energy; Bottled gas; Diesel oil; Lubricating oil; Liquefied gas; Liquefied natural gas

Class 7: Fuel dispensing pumps; Fuel dispensing pumps for service stations; Hydrogen dispensing pumps for service stations

Class 9: Battery chargers; Battery charging apparatus for vehicles; Batteries for land vehicles; Car batteries; Charging stations for electric vehicles; Apparatus for electricity distribution; Electric power supply units; Electric accumulators; Card readers; Encoded cards; Measuring instruments; Monitoring instruments (electric); Detecting instruments, other than for medical use; Monitoring apparatus, other than for medical purposes; Fluid level sensors; Pressure sensors; Solar panels for electricity generation; Solar cells for electricity generation; Photovoltaic cells; Fuel cells; Apparatus for managing energy supplies; Electricity storage apparatus; Computer software

Class 12: Ships; Tankers (ships)

Class 29: Food products made from meat; Frozen prepared meals consisting principally of meat; Meat; Meat extracts; Prepared meals consisting principally of meat; Prepared meals made from meat (meat predominating); Prepared meals, predominantly of meat or vegetables; Fish (not live); Poultry, not live; Game (not live); Dried fruit; Frozen fruits; Fruit, preserved; Fruits, dried; Fruits, tinned; Cooked fruits; Cooked vegetables; Fruits, cooked; Vegetables, cooked; Canned vegetables; Dried vegetables; Frozen vegetables; Preserved vegetables; Tinned vegetables; Vegetables, preserved; Vegetables, tinned; Jellies; Jams; Eggs; Milk; Milk products; Dairy products; Edible oils; Edible fats; Coconut milk; Coconut cream; Cheese; Food preserves; Pickles; Edible nuts; Tomato concentrates (puree); Tomatoes (canned); Canned tomatoes; Condensed tomatoes; Preserved tomatoes; Tomatoes (cooked); Tomatoes (dried); Tomatoes (preserved); Potato crisps; Frozen prepared meals consisting principally of fish; Frozen prepared meals consisting principally of vegetables; Prepared meals consisting principally of fish; Prepared meals consisting principally of vegetables; Prepared meals made from fruit (fruit predominating); Food products consisting principally of fish; Food products made from nuts; Food products made of fish; Vegetable food products; Preparations consisting wholly or principally of nuts

Class 30: Coffee; Coffee substitutes; Tea (not medicinal); Cocoa; Sugar; Rice; Tapioca; Sago; Cereal flour; Pasta; Pasta products; Noodles; Rice products for culinary purposes; Bakery products; Bread; Biscuits; Cakes; Pastries; Muffins; Confectionery; Pies; Snack foods consisting principally of rice; Snack foods made from cereals; Snack foods made from corn; Snack foods consisting principally of confectionery; Snack bars containing a mixture of grains, nuts and dried fruit (confectionery); Snack bars containing dried fruits (confectionery); Snack bars containing grains (confectionery); Cereal bars; Ices; Ice cream cones; Flavoured topping for desserts; Edible ices; Honey; Treacle; Chocolate; Yeast; Baking powder; Salt for flavouring food; Mustard; Vinegar; Condiments; Sauces (condiments); Spices; Ice; Prepared meals containing (principally) pasta; Prepared meals containing (principally) rice; Foodstuffs made from cereals; Foodstuffs made of rice; Dried pasta; Dried pasta foods; Frozen meals consisting primarily of pasta; Prepared pasta meals; Freeze-dried dishes with the main ingredient being rice; Frozen meals consisting primarily of rice; Frozen prepared rice; Prepared rice dishes; Prepared desserts (confectionery); Prepared pizza meals; Dried herbs (seasonings); Food products consisting of cereals; Food products predominantly made of cereals; Fruit coulis (sauces)

Class 31: Fresh fruit; Horticultural produce; Grains (cereals); Grains for animal consumption; Processed grains for consumption by animals; Unprocessed grains; Unprocessed agricultural produce; Unprocessed seeds; Fresh vegetables; Vegetables, fresh; Nursery plants; Flowers, natural; Natural flowers; Live animals; Animal foodstuffs

Class 32: Mineral water (beverages); Aerated water; Non-alcoholic beverages; Fruit beverages; Fruit juices; Syrups for beverages; Edible essences for making beverages; Essences for making beverages; Fruit concentrates for making beverages; Fruit juice extracts (beverages or for making beverages); Fruit juice nectar (beverages or for making beverages); Fruit syrups for making beverages; Malt based preparations for making beverages; Non-alcoholic preparations for making beverages; Syrup for making beverages; non-alcoholic essences for making beverages; Beer

Class 33: Wine; Alcoholic beverages (except beer)

Class 35: Distribution of goods (not being transport services) and wholesale of goods; Retail services; Convenience store retailing; Advertising; Marketing; Promotional services; Business management; Business administration; Organisation and management of customer loyalty programmes; Organisation, operation and supervision of customer loyalty schemes; Business advice relating to franchising; Business assistance relating to franchising; Import-export agencies in the field of energy; Retail services featuring electricity services of others; Selection of personnel; Procurement services for others (purchasing goods and services for other businesses); Distribution of samples; Distribution of advertising material; Accounting; Systemization of information into computer databases; Business consultancy; Office functions; Business advisory services; Provision of business information

Class 36: Commodity trading (financial services); Financial services; Credit card services; Consumer credit services; Issuance of tokens of value; Issuing of vouchers; Financial sponsorship; Brokerage of carbon credits; Trading in futures; Options trading

Class 37: Farming equipment repair and maintenance; Maintenance and repair of aircraft; Maintenance and repair of motor vehicles; Maintenance and repair of vehicles; Maintenance or repair of automotive vehicles; Motor vehicle maintenance and repair; Repair of tyres; Repair services; Tyre repair; Cleaning services; Car washing; Vehicle polishing; Car cleaning services; Vehicle battery charging; charging of electric vehicles; Aircraft maintenance; Maintenance of aircraft; Marine engineering (maintenance); Battery charging services; Battery charging services for vehicles; Replacement of batteries; Dry cleaning; Building construction

Class 39: Distribution of energy; Electricity distribution; Electricity supply services; Transmission of electricity; Electricity storage; Provision of vehicle parking facilities; Vehicle parking services; Depot services for the storage of vehicles; Charter of ships; Chartering of ships; Freight (shipping of goods); Freight shipping; Loading of ships; Shipping agency services; Transport by ship; Unloading and refloating of ships; Shipping port services (berthing, mooring, cargo and container handling, storage and transportation); Shipping of goods; Distribution of gas; Gas storage services; Transport services; Packaging of goods; Delivery of goods; Storage of goods; Delivery of parcels; Parcel collection services; Parcel delivery; Parcel distribution; Parcel receipt services; Storage of parcels; Transportation of parcels; Tracking and tracing services for letters and parcels; Arranging of travel

Class 40: Refining of petroleum products; Gas processing services; Processing of gas; Refining of gas; Processing of chemicals; Refining of oil; Refining services; Custom fabricating, making or manufacturing of goods or materials (for others); Processing of waste materials; Treatment of hazardous materials; Treatment of hazardous substances; Treatment of hazardous waste; Providing information, including online, about treatment of materials; Waste management information; Production of energy; Generation of electricity; Electricity generation plants; Recycling; Carbon offsetting services (recycling); Processing of oil; Gas processing and treatment

Class 42: Exploration services in the field of the oil, gas and mining industries; Gas, oil, petroleum, minerals exploration (prospecting); Providing scientific information, advice and consultancy relating to carbon offsetting; Advisory services relating to energy efficiency

Class 43: Providing food and drink; Snack bars (provision of food and drink); Cafe services; Cafeteria services; Canteen services; Restaurant services; Take away food services; Temporary accommodation

Trade Mark Application Number 2086076 (‘Leaning A Series Mark’)

Class 1: Chemicals for use in the petrochemicals industry; unprocessed plastics; unprocessed artificial and synthetic resins; purified terephthalic acid; hydraulic fluid; gas for industrial use; petrol additives (chemical); petroleum dispersants; chemical additives for petroleum products; hydraulic fluid; hydraulic brake fluid; petroleum derivatives; hydrogen

Class 3: Automotive waxes; detergents; turpentine

Class 4: Petrol; petrol additives (petrochemicals); fuels; biofuels; liquid fuels; solid fuels; gas fuels; hydrogen fuel; lubricants; automotive lubricants; engine oils; shock absorber oils; electricity; electrical energy; electrical energy from renewable sources; bottled gas; diesel oil; lubricating oil; liquefied gas; liquefied natural gas

Class 7: Fuel dispensing pumps; Fuel dispensing pumps for service stations; Hydrogen dispensing pumps for service stations

Class 9: Battery charging equipment; battery chargers; battery charging devices for motor vehicles; batteries for vehicles; charging stations for electric vehicles; charging station services for electric vehicles; electric power distribution apparatus; electric power supply units; electric accumulators; card readers; smart cards; encoded cards; measuring, detecting and monitoring instruments, indicators and controllers; monitoring apparatus and equipment; sensors and detectors; pressure sensors; fluid level sensors; maintenance software; predictive maintenance software; software for remote diagnostics; software for monitoring machinery and mechanical equipment; software for monitoring wind turbines; solar panels; solar modules; solar cells; photovoltaic cells; photovoltaic modules; photovoltaic apparatus for generating electricity; fuel cells; apparatus for electricity distribution; apparatus for managing energy supplies; electricity storage apparatus

Class 12: Ships; tankers (ships)

Class 29: Meat, fish, poultry and game; meat extracts; preserved, dried, frozen, tinned and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk and other dairy products; edible oils and fats coconut milk and cream; cheese; preserves, pickles; edible nuts; tomato concentrates (puree); tomato pastes and dips; canned, condensed, cooked, dried and preserved tomatoes; potato crisps; prepared, tinned and frozen meals consisting primarily of meat, fish, fruit, nuts or vegetables; prepared food products consisting primarily of meat, fish, fruit, nuts or vegetables

Class 30: Coffee, tea, cocoa, sugar, rice, tapioca, sago, coffee substitutes; flour and preparations made from cereals and other cereal-derived food products to be used as breakfast foods; pasta and pasta products; noodles; rice and rice products; bakery products in this class including bread, biscuits, cakes, pastries, muffins and confectionery, pies, snack foods prepared from rice, corn or cereals; snack foods consisting principally of confectionery; snack bars containing dried fruits, nuts or grains; cereal bars; ices; ice cream cones; flavoured topping for desserts; confectionery; edible ices; honey, treacle; chocolate; yeast, baking-powder; salt; mustard; vinegar, sauces, condiments and spices in this class; ice; prepared meals consisting primarily of cereals, pasta or rice; foodstuffs made from cereals, pasta or rice; tinned, preserved, prepared, frozen and dried foods and meals consisting primarily of cereals, pasta or rice; prepared desserts (confectionery); prepared pizza and pasta meals; dried herbs (seasonings); fruit sauces

Class 31: Raw and unprocessed agricultural, horticultural and forestry products and grains in this class; raw and unprocessed grains and seeds; fresh fruits and vegetables; natural plants and flowers; live animals; foodstuffs for animals, malt

Class 32: Beers; mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages

Class 33: Wines; Alcoholic beverages (except beers)

Class 35: Wholesale and retail services, including the wholesale and retail of food, drinks and confectionery, cards, gifts and flowers, petroleum, gas, lubricants, fuel oils, kerosene, grease, detergents, agricultural oils; convenience store retailing; advertising, promotion and marketing services; business management; business administration; organisation, operation, supervision and management of customer loyalty programmes; business advice and assistance relating to franchising; providing an incentive reward program through the issuance and processing of loyalty points; import-export agencies in the field of energy; retail services featuring electricity services of others; selection of personnel; procurement services for others (purchasing goods and services for others); distribution of goods (not being transport services) (agent, wholesale, representative services, by any means); distribution of samples and advertising material; retail franchising; accounting; systemisation of information into computer databases; business consultancy services; office functions; information, consultancy and advisory services in relation to all the aforementioned

Class 36: Financial services, including credit services, credit card services; issuing of tokens and vouchers of value; financial sponsorship; brokerage of carbon offsets; brokerage of carbon credits; brokerage of greenhouse gas offsets; commodity trading (financial services); trading of emission reduction credits; trading in futures; options trading; Leasing of property; Property management; Property valuation; Financing of property development; Insurance services relating to property; Loan services for property investment

Class 37: Service station services; Repair, installation, maintenance and cleaning services, including automobile repair services; vehicle tyre refitting and repair services; vehicle washing services, including valeting, washing, cleaning, waxing and polishing; vehicle service stations; vehicle fuelling services; vehicle battery charging; recharging services for electric vehicles; maintenance and repair of vehicles, marine craft, aircraft and farm machinery; maintenance and repair of electric vehicles; recharging of batteries and accumulators; replacement of batteries; installation, maintenance, repair and servicing of vehicle charging stations; installation, maintenance, repair and servicing of apparatus and equipment for supplying electricity to electric vehicles; installation and maintenance of sensors and detectors; maintenance, servicing and repair of power generating apparatus and installations; refuelling services; provision of information, including technical advice and consultancy services, in relation to the use of oils, lubricants, petroleum products and fuels in the maintenance of vehicles, goods, machinery and industrial apparatus; dry cleaning; building construction; repair; installation services

Class 39: Distribution of energy; distribution of renewable energy; electricity distribution and supply; distribution and transmission of electricity; electricity storage; power supply and distribution; vehicle parking; depot services for the storage of vehicles; Collection, storage, transportation, supply and delivery of petroleum, petroleum products, gas, chemical and other products; charter of ships; Chartering of ships; Freight (shipping of goods); freight shipping; loading of ships; Shipping agency services; Transport by ship; Unloading and refloating of ships; Shipping port services (berthing, mooring, cargo and container handling, storage and transportation); shipping of goods; distribution of gas; gas storage services; transport services; packaging, delivery and storage of goods; parcel transportation, distribution, delivery, receipt, storage and collection services; tracking and tracing services for letters and parcels; travel arrangements; information, consultancy and advisory services in relation to all the aforementioned

Class 40: Refining, manufacturing, processing, blending, fabricating and conversion of petroleum, petroleum products, gas, chemical and other products; treatment of waste materials and hazardous substances; information, consultancy and advisory services in relation to all the aforementioned; generation of power; generation of energy; generation of electricity; production of energy by power plants; recycling; carbon capture and storage; offsetting services (recycling); production of energy; production of electricity; refining of oil; processing of oil; gas processing treatment; gas processing services

Class 42: Exploration services in the field of the oil, gas and mining industries; gas, oil, petroleum, minerals exploration (prospecting); provision of information, advice and consultancy in relation to carbon offsetting; advisory services relating to energy efficiency

Class 43: Services for providing food and drink; cafe, cafeteria, canteen, restaurant, snack bar and take-away restaurant services; temporary accommodation

Trade Mark Application Number 2086077 (‘Ampol Series Mark’)

Class 3: Automotive waxes; detergents; turpentine

Class 7: Fuel dispensing pumps; Fuel dispensing pumps for service stations; Hydrogen dispensing pumps for service stations

Class 12: Ships; tankers (ships)

Class 32: Beers; mineral and aerated waters and other non-alcoholic beverages; fruit beverages and fruit juices; syrups and other preparations for making beverages

Class 33: Wines; Alcoholic beverages (except beers)

Class 43: Services for providing food and drink; cafe, cafeteria, canteen, restaurant, snack bar and take-away restaurant services; temporary accommodation

(‘Leaning A Device’)	(‘Leaning A Series Mark’)	(‘Ampol Series Mark’)
Application no. 2071142	Application no. 2086076	Application no. 2086077
Priority date: 2 March 2020	Priority date: 5 May 2020	Priority date: 5 May 2020
Endorsement: 1. Red and blue 2. White on a red background 3. White on a black background 4. Black on a white background.	Endorsement: 1. Red and blue 2. White on a red background 3. White on a black background 4. Black on a white background.
Classes: 1, 3, 4, 7, 9, 12, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40, 42 and 43. The full specifications of goods and services is listed at Appendix A of this decision.