Combe International Ltd v Dr August Wolff GmbH & Co KG Arzneimittel
[2017] ATMO 110
•29 September 2017
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Combe International Ltd to extension of protection to Australia in relation to IRDA No. 1701217 (IR No. 985168) (3; 5) - Vagisan - in the name of Dr. August Wolff GmbH & Co. KG Arzneimittel.
Delegate: | Heath Wilson |
Representation: | Opponent: Amanda Caldwell of Spruson & Ferguson. Holder: Siobhan Ryan of Counsel instructed by Griffith Hack. |
Decision: | 2017 ATMO 110 Opposition to extension of protection under Reg 17A.33 of the Trade Marks Regulations 1995 – grounds under sections 44, 60, 42(b), and 62A of the Trade Marks Act 1995 pursued – section 60 established – extension of protection to Australia refused. |
Background
This matter is an opposition to the extension of protection to Australia of an International Registration Designating Australia (‘IRDA’), the current details of which are set out below.
IRDA No. 1701217
International Registration No. 985168
Priority Date: 27 May 2015
Holder: Dr. August Wolff CmbH & Co. KG Arzneimittel (‘the Holder’)
IRDA: Vagisan (‘the Trade Mark’)
Specification of Goods:
Class 3: Soaps, perfumery, essential oils, cosmetics, hair lotions, all aforementioned goods not for the indication and application of tired legs and/or arms
Class 5: Pharmaceutical products, sanitary products for medical purposes; dietetic substances for medical purposes, all aforementioned goods not for the indication and application of tired legs and/or armsThe IRDA was examined under reg 17A.12 of the Trade Marks Regulations 1995 (‘the Regulations’), accepted for possible extension of protection to Australia and advertisement of that acceptance appeared in the Australian Official Journal of Trade Marks on 15 October 2015. On 15 December 2015, Combe International Ltd (‘the Opponent’) filed a Notice of Intention to Oppose followed by a Statement of Grounds and Particulars (‘SGP’), which together formed the Notice of Opposition.
Regulation 17A.34[1] sets out the grounds for opposing an IRDA and the SGP set out grounds of opposition under sections 44 (nominating trade mark nos. 301438, 574568, 1267022, 1446475, 1490519, 1494391 and 1692143) 60, 42(b) and 62A of the Trade Marks Act 1995 (‘the Act’).
[1] Item 16 of Schedule 3 to the Intellectual Property Legislations Amendment (Raising the Bar) Regulation 2013 (Cth) and Reg 22.9(1) of the Trade Marks Regulations 1995.
The Holder filed a Notice of Intention to Defend and the evidence stages commenced, resulting in the following evidence being filed:
Evidence in Support
Declaration of Laura Quintano (Vice President, Associate General Counsel of the Opponent) made 6 June 2016 with exhibits LQ-1 to LQ-18 (‘Quintano 1’).
Evidence in Answer
Declaration of Christoph Harras-Wolff (Managing Partner of the Holder) made 12 September 2016 with Annexures 1 to 8 (‘Harras-Wolff’).
Evidence in Reply
Declaration of Laura Quintano made 11 November 2016 with exhibits LQ-19 and LQ-20 (‘Quintano 2’).
Both parties requested to be heard on the opposition and I am to decide the opposition as a delegate of the Registrar of Trade Marks. The parties provided written submissions in support of their positions and the hearing was scheduled for 21 July 2017.
I heard the opposition in Canberra on the scheduled day. Siobhan Ryan of Counsel instructed by Griffith Hack appeared on behalf of the Holder with Amanda Caldwell of Spruson & Ferguson appearing on the Opponent’s behalf.
On 13 July 2017, the Holder filed the declaration of Sally Shrimpton (Legal Practitioner at Griffith Hack) made 13 July 2017 with Annexure 1. The Annexure was a decision of the United States Patent and Trademark Office and is relevant to these proceedings. The decision was issued on 19 June 2017 and involved the same parties, same trade marks and similar issues as those before me. Ms Ryan sought to have the material introduced under Reg 21.19 of the Regulations. However, I found at the hearing that a formal application under that regulation was unnecessary in these circumstances and I would treat the material simply as if it were legal precedent brought to my attention during the course of making submissions. As it involved her client, Ms Caldwell was familiar with the decision and was subsequently given an opportunity to comment on its content, and the weight to be given to its findings, which I will come to later.
The Opponent pressed all of the grounds of opposition particularized in the SGP, but focused specifically on the grounds under section 44 and 60. The Opponent bears the onus of establishing at least one of the grounds on the civil standard of the balance of probabilities.[2] The rights of the parties are to be determined as at the date of the application[3] which is generally, but not always, the filing date.[4] In this opposition, the relevant date is 27 May 2015.
[2] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] affirming the approach of Gyles J in Pfizer Products Inc. v Karam [2006] FCA 1663, [26].
[3] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82; (1954) 91 CLR 592, [595].
[4] See sections 6, 12, and 72 of the Act.
Section 44
Section 44 of the Act relevantly provides:
44Identical etc. trade marks
(1)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of goods (applicant’s goods) must be rejected if:
(a)the applicant’s trade mark is substantially identical with, or deceptively similar to:
(i)a trade mark registered by another person in respect of similar goods or closely related services; or
(ii)a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and
(b)the priority date for the registration of the applicant’s trade mark in respect of the applicant’s goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.
Note 1:For deceptively similar see section 10.
Note 2:For similar goods see subsection 14(1).
Note 3:For priority date see section 12.
Note 4:The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.
The Opponent relied on seven of its own registered trade marks in pursuit of the ground of opposition under section 44 of the Act. The details of those trade marks are:
TM No: | Priority Date | Trade Mark | Class and Specification of Goods |
301438 | 21.10.76 | VAGISIL | 5: Medicated lotions and medicated creams |
574568 | 17.3.92 | VAGISIL | 3: Cleansers; soaps; cosmetics; sanitary preparations being toiletries including cosmetic cleansing liquid for the external vaginal area |
1267022 | 9.10.08 | VAGISIL | 10: Vaginal pH testing kits containing testing swabs and colour guides |
1446475 | 1.09.11 | VAGISIL | 5: Medicated products for feminine use, including pre-moistened feminine wipes and feminine anti-itch creams; and vaginal lubricants |
1490519 | 11.5.12 | VAGISIL The Expert In Intimate Skin | 3: Non-medicated products for feminine use |
1494391 | 31.5.12 | 3: Non-medicated products for feminine use | |
1692143 | 5.12.14 | VAGISIL | 3: Feminine antiperspirant creams, gels, lotions, powders, and sprays; feminine deodorant creams, gels, lotions, powders, and sprays; non-medicated feminine soothing creams, gels, lotions, powders, and sprays for the skin; non-medicated douches; non-medicated moisturizers for the skin at the external vaginal area; non-medicated pre-moistened feminine towelettes and wipes; non-medicated feminine hygiene washes 5: Preparations for external and internal lubrication and moisturization of the vagina; medicated feminine anti-itch creams, gels, lotions, powders, and sprays for the skin; medicated douches; vaginal lubricants; vaginal moisturizers; medicated pre-moistened feminine towelettes and wipes; medicated feminine hygiene washes 10: Massagers |
(Collectively, ‘the Opponent’s trade marks’).
As can be seen in the above table, each one of the Opponent’s trade marks has an earlier priority date to that of the Trade Mark. The goods for which protection is sought under the IRDA in classes 3 (soaps, perfume, oils, cosmetics, hair lotions) and 5 (pharmaceutical products, sanitary products and dietetic for medical purposes) are all similar[5] goods to most (if not all) of the goods for which the Opponent’s trade marks are registered.
[5] Being the same or of the same description as defined under section 14(1) of the Act.
Substantially Identical/Deceptively Similar
As the Opponent did not argue that the Trade Mark was substantially identical to any of the Opponent’s trade marks, the consideration that remains under this section of the Act is whether the trade marks in question are deceptively similar. Section 10 defines the expression ‘deceptively similar’ to mean a trade mark that so nearly resembles another trade mark that it is likely to deceive or cause confusion. The accepted approach to determining whether two trade marks are deceptively similar was explained by Dixon and McTiernan JJ in Australian Woollen Mills Ltd v F. S. Walton and Company Ltd:
[T]he marks ought not ... to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same ... The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded.[6]
[6] [1937] HCA 51; (1937) 58 CLR 641, (658).
The relevant common element (and it is usually the sole element) in each of the Opponent’s trade marks is the word ‘VAGISIL’. Once again, the Trade Mark is ‘VAGISAN’.
There is, no doubt, a clear visual similarity in the respective prefixes of the trade marks which cannot be overlooked. The fact that this similarity occurs at the beginning of the trade marks would, in many cases, guide the consideration regarding the likelihood of deception or confusion between them.[7] However, it is equally clear that the respective trade marks are directly referring to the nature of the products (being vaginal care products). The effect of the descriptive nature of ‘VAGI-’ within a trade mark for products such as these is that that element must be accorded less weight for the purposes of comparison.[8]
[7] See London Lubricants (1920) Ltd’s Appn (1925) 42 RPC 264, (279).
[8] See Coca Cola Co of Canada v Pepsi Cola Co of Canada (1940) 58 RPC 127; Ocean Spray Cranberries Inc v Registrar of Trade Marks [2000] FCA 177; (2000) 47 IPR 579.
In terms of aural similarity, Ms Ryan argued that the natural pronunciation of the words is ‘VAGI-SAN’ and ‘VAGI-SIL’ rather than ‘VAGIS–IL’ and ‘VAGIS-AN’. This pronunciation is accurate and Ms Caldwell conceded this point. However, she also submitted that this opposition could be distinguished from cases where a monopoly should not be being granted in a descriptive prefix (‘VAGI-‘) because the common prefix between the trade marks is ‘VAGIS’ rather than ‘VAGI’. Ms Ryan argued that the suffixes in the current matter are unlikely to be slurred in a natural pronunciation of the trade marks. On balance, I agree on that point. I am additionally persuaded by the respective meanings of the suffixes and how they are likely to be perceived by the relevant consumers.
In terms of the respective ideas of the trade marks, the following comments from Telstra Corporation Limited v Phone Directories Company Pty Ltd are relevant:
There are statements in some of the authorities that, if read in isolation, might suggest that the idea of a mark can only be considered once visual or aural similarity is found. For instance, in Sports Café Ltd v Registrar of Trade Marks [1998] FCA 1614; (1998) 42 IPR 552 (“Sports Café Ltd”) at 557, the Full Court of this Court said that:
the fact that two marks convey a common idea becomes relevant only if the marks themselves look or sound alike. Commonality of idea might then tip the balance in favour of a finding that the likeness is deceptive.
We consider that the point that the Full Court was expressing in this passage was that ideational similarity is not sufficient independently of a consideration of whether the marks look or sound alike.[9]
[9] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [210]-[211].
Harras-Wolff indicates that “The name ‘Vagisan’ was chosen because it is a fanciful combination of the words ‘Vagina’ and ‘sanify’.” I find that such a meaning would be obvious to the consumer seeking to purchase the Holder’s vaginal care products with sanifying properties. Conversely, the Opponent’s trade marks do not contain such a meaning and I find that this lessens any chances of an Australian consumer believing that the products originate from the same trade source. For completeness, I find that the additional elements such as the slogan ‘The Expert in Intimate Skin’ within trade mark no. 1490519 and the ‘V’ device element in trade mark no. 1494391 provide a further point of differentiation to the Trade Mark.
In the end, the trade marks must be considered in their entirety, or as it was explained in the case of Clark v Sharp:
One must bear in mind the points of resemblance and the points of dissimilarity, attaching fair weight and importance of all, but remembering that the ultimate solution is to be arrived at, not by adding up and comparing the results of such matters, but by judging the general effect of the respective wholes.[10]
[10] (1898) 15 RPC 141, (146).
The nature of the relevant market should also be considered. The goods in question are not expensive but due to their medical nature and purpose would mean consumers would be more attentive to branding differences than would be the case for regular creams, soaps, lotions and wipes. It is clear that both sets of specifications notionally contain feminine hygiene products and consumers of the products are unlikely to be confused on the basis of the common element ‘VAGIS’ contained within the trade marks. While the consumers in the current matter would not necessarily be medical professionals, I find the decision in Bracco International BV v Schering AG to be instructive. In that decision, Deputy Registrar Hardie found that the trade mark ‘SONOVUE’ for contrast media for in-vivo imaging’ was not similar to the trade mark ‘SONOVIST’. In doing so, she commented:
Given the function of the component parts, however, and in particular the occurrence and relevance of the SONO- prefix in technical terminology, and in a clutch of other trade marks, I do not think that these persons (or, for that matter, hospital or clinic administrative staff) will assume that the commonly held features of these trade marks indicate a common trade origin.[11]
[11] Bracco International BV v Schering AG (1999) 47 IPR 381.
Finally, my attention was drawn by Ms Ryan to the aforementioned decision of the United States Patent and Trademark Office (Trademark Trial and Appeal Board or ‘TTAB’) which made the following similar observations:
Applicant is seeking to register VAGISAN and Opposer has registered VAGISIL. The VAGI-prefix is the common element of the marks. As discussed above, the VAGI-prefix is a suggestive term engendering the commercial impression related to intimate feminine hygiene products. Where the common portion of the marks is weak, consumers may distinguish the marks based on otherwise minor differences in the remaining portions of the mark. In re National Data Corp., 224 USPQ at 752,
…
Thus, despite the fact that the Applicant’s mark is commercially strong, the goods are in part identical and presumed to move in the same channels of trade, because of the inherent weakness of the VAGI-prefix, the considerable degree of purchaser care, and dissimilarity of the marks VAGISAN and VAGISIL, we find that Applicant’s mark VAGISAN is not likely to cause confusion with Opposer’s mark VAGISIL.[12]
[12] Combe Incorporated v. Dr. August Wolff GmbH & Co. KG Arzneimittel, Opposition No. 91209708 (June 19, 2017) (Opinion by Judge Bergsman).
Ms Caldwell indicated that the above decision of the TTAB has an appeal pending and it is not precedent. In addition, there are clear differences between the considerations under United States trade mark law and the law in this country. Accepting all that, and putting aside the consideration of any reputation in the trade marks, the decision nevertheless displays some clear similarities in approach with Australian trade marks law purely on the question on whether two trade marks are similar.
I note that Quintano 2 also contains details of an opposition in the United Kingdom the basis of which was an argument from the Holder that the respective trade marks VAGISAL and VAGISAN were similar. No decision was made by that office as the Holder withdrew that opposition and international registration no. 3056097 (‘VAGISIL’) proceeded to registration in the UK. I draw no conclusions from this evidence and it has not affected my ultimate finding.
In the Israeli Patent Office on 11 August 2016 a provisional refusal was issued against International Registration Designating Israel No. 1245696 (‘VAGISIL’) on the basis of the Holder’s earlier trade mark no. 282285 VAGISAN in respect of similar goods.[13] However, in a previous decision[14], I specifically highlighted the problems inherent in relying on the outcomes of trade mark proceedings from other international offices. It is particularly problematic where the trade marks office is based in a country (such as Israel) where the majority of residents do not speak English as their first language. Even if the relevant legal principles were analogous to Australian trade mark law, it is likely that the greatest emphasis would be placed on the visual and aural similarity between the trade marks as the meaning in English may not be as evident to consumers in that country.
[13] Exhibit LQ-20 to Quintano 2.
[14] MAN AG v Beiqi foton Motor Co, Ltd [2015] ATMO 90, [25].
After considering the above factors, I find that no real, tangible[15] danger of deception or confusion exists between the Trade Mark and the Opponent’s trade marks. The trade marks are not deceptively similar and the ground of opposition under section 44 of the Act has not been established.
[15] Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020; (1999) 93 FCR 365, (382).
Section 60
Section 60 of the Act provides:
60Trade 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.
Note:For priority date see section 12.
To establish the ground of opposition under section 60, the Opponent must demonstrate the existence of a reputation extant in another trade mark in Australia as at the priority date. The Opponent must then establish that the use of the Trade Mark would be likely to deceive or cause confusion as a result of the aforesaid reputation.
It is not a requirement that the trade mark be ‘deceptively similar’ for this ground of opposition to be established. However, some form of similarity between the trade marks must exist and I am satisfied that this is the case for the reasons given in the above discussion in relation to section 44 of the Act.
The scope of section 60 was set out in the Explanatory Memorandum to the Trade Marks Amendments Act 2006 which relevantly provided:
The provisions have not been written so as to establish a new class of trade marks ("well-known" marks) or to prescribe a particular threshold of how well-known a mark must be. Rather, the test has been written so that it can be applied to all marks. The test depends on the extent of the reputation in Australia that has been acquired by a sign. In light of that reputation, the question to be asked is whether the use of a subsequent trade mark would be likely to result in deception or confusion.
In other words, section 60 of the Act properly applied was not drafted in such a way as to solely protect “well-known” registered trade marks. The threshold requirement for reputation is that a ‘significant’ or ‘substantial’[16] number of consumers within the relevant trade/market (rather than Australian consumers as a whole) must be likely to be deceived or confused for this ground to be established. The assessment of what is ‘significant or substantial’ must be properly and sensibly applied[17] and may depend on the specialised nature of the relevant market.[18] The reputation must exist within a trade mark and be extant in Australia as at the priority date (which is 27 May 2015).
[16] See Renaud Cointreau & Cie v Cordon Bleu International Ltee (2001) 52 IPR 382; [2001] FCA 1170 and ConAgra Inc. v McCain Foods (Aust) Pty Ltd [1992] FCA 159; (1992) 23 IPR 193.
[17] “Bali” Trade Mark [1969] RPC 472, (496).
[18] Le Cordon Bleu BV v Cordon Bleu International Ltee (2001) 50 IPR 1; [2000] FCA 1587, [20].
The table extracted in the above discussion under the section 44 ground set out the relevant trade marks relied upon by the Opponent for this ground, and the evidence indicates that the main trade marks are ‘VAGISIL’ (the word solus) and ‘VAGISIL (with the ‘V’ device)’. The first use in the United States of the ‘VAGISIL’ word trade mark by the Opponent occurred in 1973 in relation to medicated creams. The Opponent’s products (including powders, moisturizing lubricants, wipes and cleanser/washes) are now sold worldwide, including in Australia. The first use of the Opponent’s trade marks in Australia was in 1985, according to Quintano 1.
The Opponent has provided evidence of annual wholesale sales in Australia[19] at Quintano 1 and advertising expenditure in Australia in also in evidence. In broad terms, I find these figures to be quite substantial, especially given the nature of the Opponent’s products and this specific market. At this point, it is worth pointing out the relevant comments of Kenny J in McCormick & Co Inc. v McCormick:
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.[20]
[19] Quintano 1, confidential exhibit LQ-4.
[20] McCormick & Co Inc v McCormick (2000) 51 IPR 102, (127).
The Opponent’s ‘VAGISIL’ products have been sold from major supermarkets and medical retailers including ‘Amcal’, ‘Chemist Warehouse’, ‘Chemmart’, ‘Coles’, ‘mychemist’, ‘Terry White Chemists’, ‘Priceline’ and ‘Woolworths’. Further, the products have been advertised in such publications as ‘New Idea’, ‘Woman’s Day’, ‘Women’s Weekly’ and ‘Woman’s Health and Fitness’.
Ms Ryan argued on the Holder’s behalf that most of the Opponent’s evidence is dated after the priority date of 27 May 2015. However, it is evident that the Opponent’s Australian website was launched in 2013 and Ms Quintano has declared that:
The usage of the VAGISIL Mark which appears in this Exhibit is typical of the usage of the trade mark which my Company has made on its website since its inception.
In addition, exhibit LQ-7 to Quintano 1 provides examples of newspaper and online advertisements bearing the Opponent’s trade marks dated from 14 April 2014, 7 March 2014, 12 May 2014 and 20 October 2013. Both this exhibit and LQ-6 provide a clear indication of the way in which the Opponent’s trade marks are presented to Australian consumers of feminine hygiene products.
The examples of trade mark use provided in the evidence demonstrate widespread use in Western Australian, Queensland, New South Wales and Melbourne publications. It is evident from the publications that the use of the trade marks is in relation to quite specific products and it is in these products that the reputation lies.
Having made the above observations, it is true that quite a few of the examples in the evidence are either undated or fall after the priority date. The Opponent bears the onus of established a reputation in a trade mark existed as a matter of fact, however evidence occurring after the priority date is not completely irrelevant because, as stated in Conde Nast Publications Pty Ltd v Virginia Taylor,:
[I]t is commonplace of the law of evidence that later events may cast light upon the true position at an earlier date.[21]
[21] Conde Nast Publications Pty Ltd v Virginia Taylor [1998] FCA 864; (1998) 41 IPR 505, (509).
The Opponent’s evidence of later use, viewed in the context of all the supporting evidence dated before the priority date (and in particular the significant evidence of sales before the priority date), highlights (at the very least) a well-established brand in Australia existing at the priority date. The contents of Quintano 1 were obviously compiled at the time of making the declaration, which was 6 June 2016, a year after the priority date. The widespread use of the Opponent’s trade marks across Australia and the significant presence of the Opponent’s products within a large number of different retail stores referred to earlier is unlikely to have been established over a short period of time.
It is evident through the demonstrated use of the Opponent’s trade marks on its products in Australia that one of the main purposes of the product is to ‘sanify’ as well as clean and deodorize. The context of the Opponent’s use of its trade marks (‘VAGISIL’) on these products more closely links it to a trade mark which is a portmanteau word of both ‘Vaginal’ and ‘sanify’ and the relevant Australian consumers are more likely to perceive a trade connection between the trade marks as a result. I make this finding despite having taken into account the (previously discussed) descriptive nature of the prefix ‘Vagis’ in the trade marks.
While I am not of the view that Australian consumers will necessarily perceive the Trade Mark to be a sub-brand of the Opponent’s trade marks, confusion is nevertheless likely to result from a combination of the trade mark reputation demonstrated by the Opponent, the nature and scope of the use demonstrated, the specific nature of the feminine hygiene market and the similarities that exist between the trade marks.
I find that confusion is more likely than not to occur as a result of the reputation in the Opponent’s VAGISIL word trade mark existing in Australia at the relevant date. The ground of opposition under section 60 of the Act has been established on the balance of probabilities.
A ground of opposition has been established and there is no requirement for the Registrar to address the remaining grounds of opposition pursued under sections 62A and 42(b). However, in the event of an appeal from this decision, those grounds (and others under the Act) are available to be pressed by the Opponent.
Decision
17A.34NDecision on opposition
(1)Unless the opposition proceedings are discontinued or dismissed, the Registrar must decide:
(a)to refuse protection in respect of all of the goods or services listed in the IRDA; or
(b)to extend protection in respect of some or all of the goods or services listed in the IRDA (with or without conditions or limitations);
having regard to the extent (if any) to which the grounds on which the IRDA was opposed have been established.
(2)The Registrar must notify the International Bureau of the Registrar’s decision.
As a delegate of the Registrar of Trade Marks, I refuse extend protection to Australia in respect of all the goods listed in the IRDA no. 1701217.
The International Bureau will be notified of the Registrar’s decision.
Costs
The Opponent has established a ground of opposition under the Act. I award costs against the Holder under section 221 of the Act in line with the relevant amounts under Schedule 8 of the Regulations.
Heath Wilson
Hearing Officer
Oppositions and Hearings
29 September 2017
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