Comité International Olympique v Calcados Az Aleia S/A

[2013] ATMO 44

TRADE MARKS ACT 1995

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

Re:Opposition by Comité International Olympique to registration of trade mark application 1407550(25) - OLYMPIKUS & Device - filed in the name of Calcados Azaleia S/A.

Delegate:

Iain Thompson

Representation:

Opponent: Gavin Adkins and Jennifer McEwan of EKM Patent & Trade Marks

Applicant: Siobhan Ryan of counsel instructed by Griffith Hack Patent & Trade Mark Attorneys

Decision:

2013 ATMO 44

s52 opposition to registration: section 60 – similarity to Opponent’s very well known trade marks – similarity reinforced by ‘bridging over’: goods in respect of which registration is sought have nexus in public mind with activities of the Opponent.

Opposition established.

Background

1. This matter is an opposition under section 52 of the Trade Marks Act 1995 (‘the Act’) to the registration of the trade mark filed by Calcados Azaleia S/A (‘the Applicant’) details of which appear below:

Application No: 1407550

Priority Date:  8 February 2011

Goods:  Clothing, footwear and headwear

Trade Mark:   (‘the Trade Mark’)

1. The application was examined in compliance with section 31 of the Act and advertised as accepted for possible registration in the Australian Official Journal of Trade Marks on 2 June 2011.

2. On 29 August 2011, Comité International Olympique, (‘the Opponent’) filed Notice of Opposition (‘the Notice’) to the registration of the Trade Mark. The Notice is couched in broad terms and includes the grounds under sections 42(b), 43, 44(1), 60 and 62A and 61 of the Act which were relied upon by the Opponent at a hearing of the matter. For the sake of completeness I find that the grounds other than those relied upon by the Opponent at the hearing have not been established and note that any ground may be relied upon should my decision be appealed to the Court where the matter will be considered de novo.

3. The hearing was before me as a delegate of the Registrar of Trade Marks in Melbourne on 29 May 2013.  The Opponent was represented by Gavin Adkins and Jennifer McEwan of EKM Patent & Trade Marks.  Siobhan Ryan of counsel instructed by Griffith Hack Patent & Trade Mark Attorneys, appeared for the Applicant.

Onus

1. The Opponent bears the onus of establishing one or more grounds of opposition on the balance of probabilities.[1]

   [1] Pfizer Products Inc v Karam [2006] FCA 1663; 237 ALR 787; (2006) 70 IPR 599; [2006] AIPC 92-146 per Gyles J at [6] to [26]; Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891; (2009) 180 FCR 60; (2009) 258 ALR 545; (2009) 82 IPR 13; [2009] AIPC 92-355 per Sundberg J at [22] to [26]; Sports Warehouse, Inc v Fry Consulting Pty Ltd [2010] FCA 664; (2010) 87 IPR 300 per Kenny J at [30] to [40]; NV Sumatra Tobacco Trading Company v British American Tobacco Services Limited [2011] FCA 1051; (2011) 198 FCR 435; (2011) 283 ALR 743 per Greenwood J at [16] to 32]; Allergan, Inc v Di Giacomo [2011] FCA 1540; (2011) 199 FCR 126; 94 IPR 541 per Stone J at [11] to [12]; Tricarico v Dunn Bay Holdings Pty Ltd [2012] FCA 271 per McKerracher J at [9] to [10] and Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81; ( 2012 ) 94 IPR 551 per Dodds-Streeton J at [13] . and, most recently, DC Comics v Cheqout Pty Limited [2013] FCA 478 (22 May 2013) per Bennett J at [13].

Relevant date

1. The relevant date at which grounds under section 52 of the Act must be considered is the filing date of the opposed application: Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592.

Evidence

1. The parties have served and filed evidence in support, evidence in answer and evidence in reply as allowed by the Trade Marks Regulations 1995.

2. The opponent’s evidence-in-support comprises:

   (a) Statutory Declaration of Howard Stupp dated 15 November 2011 and Exhibits SH-1 to SH-11.

3. The applicant’s evidence-in-answer comprises:

   (a) Statutory Declaration of Pedro Bartelle dated 29 March 2012 and Annexures A to E.

   (b) Statutory Declaration of Anne Makrigiorgos dated 13 April 2012 and Annexures AM-1 and AM-2.

   (c) Statutory Declaration of Stephen Hanmer Downes dated 5 June 2012 and Annexures SHD-1 to SHD-3.

4. The opponent’s evidence-in-reply comprises:

   (a)Statutory Declaration of Leonard Pirastru dated 11 September 2012 and Exhibits LP-1 to LP-9.

Howard Stupp

1. Monsieur Stupp has been Director of Legal Affairs of the Opponent since 1984.

2. Monsieur Stupp explains that in 1892, Baron Pierre de Coubertin decided to re-establish the Olympic Games.  Soon after, on 23 June 1894, the IOC was appointed to organise the Olympic Games and to create the Olympic Movement.  The first Olympic Games of the modern era opened in Athens on 6 April 1896.  Olympic Games have since taken place every two years, alternating between the Summer and the Winter Games. The designation “Olympic” and the “Olympic Symbol (five interlaced rings)” were first used in 1913.

3. Monsieur Stupp states:

   The Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the principles of the Olympic Charter. It comprises the following three main constituents:

   The IOC: the IOC is the supreme authority of the Movement. A copy extract from the IOC’s website at is attached hereto and marked Exhibit marked SH-1. It contains information on the history, role and organisation of the IOC.

   The International Federations (Ifs): these are international non­ governmental organisations administering one or several sports at world level and encompassing organisations administering such sports at national level.

   The National Olympic Committees: their mission is to develop, promote and protect the Olympic Movement in their respective countries.

   […]

   The IOC has secured registrations for its OLYMPIC / OLYMPICS trademarks with respect to products and services in International Classes 1 to 45 in many countries of the world. An extract from the WIPO database with a selection of the IOC’s registrations for the “OLYMPIC” and “THE OLYMPICS” trademarks is attached and marked as Exhibit SH-3.

4. Monsieur Stupp observes that in Australia the Olympic Insignia Protection Act 1987 protects the “Olympic Symbol (five interlaced rings)” and a number of Olympic Expressions, including the words “Olympic”, Olympics” and “Olympic Games”.

Senor Bartelle

1. Senor Bartelle in his evidence in answer states that he is the Marketing Director of Vulcabras Azaleia - RS, Calcados E Artigos Esportivos S.A. (‘Vulcabras’) (formerly the Applicant).  Senor Bartelle explains:

   Vulcabras is a footwear and sporting goods manufacturer. Vulcabras has been recognized as one of the 10 largest manufacturers of footwear and sporting goods in the world and the leading manufacturer of footwear and sporting goods in Latin America. Vulcabras has 41,000 employees, 26 production facilities, 7 administrative units and 4 product development units in Brazil and around the world. Vulcabras manufactures 200,000 pairs of shoes a day. Over the last 5 years, Vulcabras has sold approximately 160 million pairs of shoes in Brazil and has exported 15 million pairs of shoes to over 40 countries worldwide.

2. For ease of reference I will term both Vulcabras and its predecessor as ‘the Applicant’.  Senor Bartelle states that the word OLYMPIKUS and the three interlocking rings were adopted as trade marks by the Applicant in Brazil in 1975 and that the Applicant is the owner of the Australian trade mark registration which appears below:

Registration No:              732261

Priority Date:  16 April 1997

Goods:Class 25: Footwear, including men’s, women’s and children’s footwear, clothing, headgear

Trade Mark:  

1. Senor Bartelle states:

   Since 1 December 2009, the web site address at has received 488 hits or visits from Australia. Annexed hereto and marked with the letter D is a Google Analytics printout for the web site showing hits between 1 December 2009 and 13 March 2012.

   Online ordering of footwear and sporting goods under the trade marks OLYMPIKUS, three interlocking rings and the combination of OLYMPIKUS and three interlocking rings is available in over 50 countries from around the world including Australia. The internet address for the online orders is Annexed hereto and marked with the letter E are printouts from the web site as at 1 March 2012 and English translations of the same.

2. Beyond these statements, Senor Bartelle does not claim that the Trade Mark or the trade mark OLYMPIKUS or the three interlocking rings trade mark were used in Australia either individually or together.  I note that the claims as to use of these trade marks, individually or collectively in Australia implied or explicit within Senor Bartelle’s declaration do not qualify as use.

Mr Downes

1. Mr Downes in his evidence in answer explains that he is:

   Principal of QBrand Consulting Pty Ltd (QBrand), a firm I founded specialising in management consulting relating to business strategy, marketing communications strategy, brand strategy, marketing and customer research and creative direction and development for a range of clients. I have worked continuously in the marketing and communications industries since 1988.

   QBrand’s main business is market research and the provision of consulting services in marketing and brand strategy. QBrand’s clients have included the industry superannuation funds Cbus and Health Super and the Industry Super Network, the healthcare and pharmaceutical companies Amgen, CSL Limited, Ipsen, Smith & Nephew and Hospira, the energy utility Jemena, the insolvency firm Taylor Woodings, the University of Melbourne, the National Australia Bank, RSL Victoria, and the premium ice-cream brand Homer Hudson.

   As a market researcher, I have personally moderated more than 20 focus groups and several hundred in-depth interviews across a range of consumer and business-to-business markets.

2. Mr Downes sets out his qualifications and experience to given expert evidence on the question of the similarity of trade marks in question.  He then sets out what he terms ‘key marketing principles’ and the factors which he sees as being in operation here and concludes:

   In my opinion, even when operating with imperfect recollection of the IOC Marks, Australian consumers who view the Applicant’s mark on clothing, footwear and headgear, are highly unlikely to be caused to wonder whether the Applicant’s goods emanate from or have some other association with the IOC.

   Assuming that the IOC has a reputation in the IOC Marks, and given the apparent strength and specificity of that reputation in identifying the Olympic Games brand as I have described above, the use of the Applicant’s mark on clothing, footwear and headgear is, in my opinion, highly unlikely to deceive or cause confusion amongst Australian consumers.

Ms Makrigiorgos

1. Ms Makrigiorgos is a principal of the firm Griffith Hack, Patent & Trade Mark Attorneys.  In her evidence in answer she provides details of pending trade marks which contain or are comprised of either those with the prefix OLYMP- or those which contain or are comprised of interlocking rings.

Mr Pirastru

1. Mr Pirastru in his evidence in reply adverts to previous dealings between the Applicant and Opponent in various countries around the world, most notably in the European Union where the OHIM decided to refuse to register EU trade mark application 3808367 for the Trade Mark.

Section 60

1. 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.

2. There is no requirement within section 60 that the trade marks in question be deceptively similar; however, it is a requirement that to establish this a trade mark or trade marks relied upon by an opponent has/have a reputation and that, because of the reputation combined with the fact that the parties’ trade marks are similar in some way there is a likelihood of deception or confusion.

3. Concerning the assessment of deception and confusion, in Registrar of Trade Marks v Woolworths [1999] FCAFC 1020; [1999] FCA 1020; (1999) 93 FCR 365; (1999) 45 IPR 411; [1999] AIPC 91-499 (‘Woolworth’s) French J said at [50]:[2]

   [2] With redactions of reference to ‘deceptive similarity’ for which there is no requirement under section 60 of the Act.

   In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 594-5, which concerned the 1905 Act, Kitto J set out a number of propositions which have frequently been quoted and applied to the 1955 Act. The essential elements of those propositions continue to apply […] under the 1995 Act. Applied also to service marks and absent the imposition of an onus upon the applicant they may be restated as follows:

   (i) […] it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient.

   (ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt.

   It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.

   (iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.

   (iv) The rights of the parties are to be determined as at the date of the application.

   (v) The question […] must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained.

   In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v The Bali Company Inc [1973] HCA 43; (1973) 129 CLR 353 at 362:

   “...the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion.”

4. In respect of the comments of Mason J, above, it is also appropriate to adapt the words of French J in Woolworths at [88] to the circumstances of this matter in the following way:

   Given the reputation of the Opponent’s trade marks is the decision maker satisfied that there is a reasonable likelihood of deception or confusion among a substantial number of persons if the applicant for registration also uses its mark normally and fairly in respect of all of the goods covered by the proposed registration?

5. Here the goods in respect of which registration is sought include sports clothing, sports footwear and sports headgear.

6. There is no doubt that the trade marks OLYMPIC and Olympic Symbol (five interlaced rings) device upon which the Opponent relies are amongst the best known trade marks in Australia.  This is readily conceded by the Applicant: Mr Downes in his declaration says:

   In my opinion, the Olympic Games, or simply the Olympics, is one of the world’s most famous and powerful brands.  I am aware that the IOC itself has claimed that the brand image of the Olympics has “universal meaning and power throughout the world” and that the imagery and values of the Olympics brand “communicate unequivocally across national, linguistic and cultural boundaries.”

   The leading international advertising and communications agency Saatchi & Saatchi, through its CEO Kevin Roberts, has described the Olympics as a “textbook Lovemark”, by which Roberts means a brand that inspires “loyalty beyond reason”

   Based on the general concept of the brand that I have described above, the IOC marks that I have been asked to consider function as brand identity elements of the overall Olympic Games brand. By this I mean that each of the IOC marks acts as a “hook” for the broader associations and meanings that consumers hold in their minds in relation to the Olympics.

7. In my consideration, the reputation of the Olympic brands extends to both the trade marks OLYMPIC and Olympic Symbol (five interlaced rings) device in relation to sporting events.  However, in his discussion of the likelihood of deception or confusion, Mr Downes, in my opinion, tends to over-focus both on the reputation of the Opponent’s trade mark OLYMPIC in isolation both from the Trade Mark (which also contains the three interlaced rings) and also the sporting activities with which it is connected.  He states, for instance:

   I note that the Olympic Games brand and related entities and services identified by the IOC marks have apparently achieved the levels of brand recognition and “unequivocal” meaning I have described above among Australian consumers at the same time as those consumers have been aware of, and/or have been very likely to encounter a very broad range of other brands whose brand identity elements include the string “OLYMP...”, including inter alia:

   OLYMPUS, which is, in my opinion, a leading and very well-known brand of cameras and other digital imaging and audio equipment and has been known as such by many Australian consumers for decades;

   OLYMPIC Air, a Greek-based international airline, which flew services into Australia for many years up until the early 2000s;

   OLYMPIC watches, known internationally and offered for sale to Australian consumers via the website olympicwatches.com.au; and

   OLYMPIACOS FC, a football (soccer) club based in Piraeus, Greece. In my opinion, Olympiacos is a well-known team and brand among the large numbers of Australian consumers who follow European football. At the time of preparing this declaration, the Olympiacos club is scheduled to play an exhibition match in Melbourne against the Melbourne Victory Football Club. Headlines on posters in many parts of inner Melbourne advertising this game promote it simply as “Olympiacos v Victory”, indicating in my view that consumers can accurately identify the word “Olympiacos” as denoting the football club and not as being related to the IOC marks.

8. And Mr Downes goes on to conclude that:

   In my opinion, the fact that recognition and awareness of the Olympic Games brand and of the IOC marks as identifying the Olympic Games brand has apparently been built and maintained in a marketplace that includes so many other marks bearing the word “Olympic” and/or the prefix “Olymp ...” provides clear evidence that Australian consumers are accustomed to, and adept at, distinguishing the IOC marks from numerous others that bear the word “Olympic” or the part-word “Olymp ...”

   In my view, given the fame and high levels of recognition of the Olympic brand identity elements, the likelihood that a consumer would recollect them imperfectly is very low.

9. In my consideration, this approach over-simplifies the nature of the Trade Mark and mistakes the cognitive pathways along which the Trade Mark is likely to be perceived and understood by the public and grows out of the instructions given to Mr Downes who states he was asked to:

   [A]ddress the following questions :

   Are consumers that have an imperfect recollection of the IOC Marks and that have viewed the client's mark on clothing, footwear and headgear, likely to be caused to wonder whether the client's goods emanate from or have some other association with the IOC?

   Assuming the IOC has a reputation in the IOC Marks, is the use of the client's mark on clothing, footwear and headgear likely to deceive or cause confusion amongst consumers?

   I have been provided with the following materials:

   An extract from the IP Australia database showing details of Australian Trade Mark Nos. 612570, 612571, 676914, 705026, 712938, 893108,1081407, 1098944, 1335229, 1394705and 1407550

1. In my consideration the above instructions over-focus on ‘imperfect recollection’ and avoid the real question which is the likely public reaction or perception in response to the Trade Mark’s use on sports clothing, sports footwear and sports headgear.

2. I do not consider that it is of much importance whether the public perceives the dominant part of the Trade Mark as being the word OLYMPIKUS which is used in association with the device of three interlaced rings or whether the perception is more likely to be of the device of three interlaced rings used in association with the word OLYMPIKUS.  The real issue is that while either of the elements, taken in isolation, might be perceived as having nothing to do with the trade marks of the Opponent, when considered together the elements of the trade mark might only be seen as referring to the trade marks of the Opponent.  The question then becomes whether that reference is sufficiently direct and there is sufficient nexus in the minds of the public caused by reference in juxtaposition to the goods in respect of which registration is sought that confusion or deception is likely.

3. The fact that there might have been a degree of copying or deliberation in the adoption of one or more of the elements of the Opponent’s trade mark is not necessarily damning in itself[3] although it might be: Australian Woollen Mills Ltd v F S Walton & Co Ltd [1937] HCA 51; (1937) 58 CLR 641:

   The rule that if a mark or get-up for goods is adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for the purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is wholesome in tendency. In a question how possible or prospective buyers will be impressed by a given picture, word or appearance, the instinct and judgment of traders is not to be lightly rejected, and when a dishonest trader fashions an implement or weapon for the purpose of misleading potential customers he at least provides a reliable and expert opinion on the question whether what he has done is in fact likely to deceive. Moreover, he can blame no one but himself, even if the conclusion be mistaken that his trade mark or the get-up of his goods will confuse and mislead the public.

   [3] McIlhenny Co v Blue Yonder Holdings Pty Ltd formerly trading as Tabasco Design [1997] FCA 962; (‘Tabasco’). In Coca-Cola Co v All-Fect Distributing Co trading as Millers Distributing Co [1998] FCA 1638, Merkel J said of Tabasco:

   In that case, the respondent’s use of “Tabasco” in relation to its business of designing and constructing stands used at exhibitions and trade fairs, was held not to constitute misleading and deceptive conduct, or passing off, in relation to the applicant’s well known brand name and product, “Tabasco” sauce. Lehane J acknowledged that the respondent was aware of the applicant’s brand name and product, and hoped to take advantage of the well-known characteristic of the applicant’s sauce by applying it to its design business. His Honour (at 199) rejected the applicant’s claim of breach of s 52 of the TPA and passing off primarily on the basis that there was an absence of any representation of connection between the respondent or its services and the applicant and its product. Lehane J (at 199) concluded that:

   “...without any association or permission the designer has - as the fact is - perhaps cheekily used a name which, by reference to its only other known use, conjures up ‘hot’ associations.”

4. In In Parker-Knoll Limited v. Knoll International Limited [1962] RPC 265, at page 174, Lord Denning said of the differences between ‘confusion’ and ‘deception’:

   Secondly, ‘to deceive’ is one thing. To ‘cause confusion’ is another. The difference is this: When you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth, the whole truth and nothing but the truth, but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from the other pieces of truth known to him or because he may not even take the trouble to do so.

5. In NV Sumatra Tobacco Trading Co v British American Tobacco Services Ltd [2011] FCA 1051; (2011) 198 FCR 435; (2011) 283 ALR 743, Greenwood J observed at [53]:

   In Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020; (1999) 93 FCR 365 at [50], French J interpolated that Kitto J’s observations as to persons caused to wonder results in the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products in question come from the same source and at [47] his Honour explained that the trade mark law concept of confusion in the sense of mere wonderment as to common origin or connection might be regarded as effecting a prophylactic support for commercial distinctiveness. It would be enough, whether prophylactic or not, having regard to all the surrounding circumstances, if the ordinary person entertained a reasonable doubt as to the source or origin of the goods: Campomar Sociedad Limited v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at [83].

6. Here I consider that the elements of the Trade Mark show such marked similarities to the well known trade marks used by the Opponent (or under its aegis) that it is likely that a person seeing the trade mark on sports clothing, sports footwear and sports headgear will (because of the reputation of the Opponent’s trade marks) be caused to wonder if the word OLYPIKUS is some foreign language variant of the word OLYMPIC and the three interlaced rings indicates the Trade Mark is one which is connected in some way with the Olympic Games and the trade marks used in respect of those games.  The Trade Mark, considered as a whole, bears two similarities to the trade marks of the Opponent which in combination are so striking that it is probable that people will be caused to wonder at some connection between the Applicant’s goods, the Trade Mark, and the Opponent.

7. Put in another way: used in combination with each other the individual elements of the Trade Mark reinforce both their own similarity and the similarity of the other element to the trade marks of the Opponent.  This similarity in the combination is so marked, in my consideration, that it is most likely that members of the public seeing the Trade Mark used on sports clothing, sports footwear or sports headgear will be at the very least caused to wonder whether it might be the case that the sporting footwear and apparel of the Applicant have some connection with the Opponent and its activities.

8. I do not consider that the similarity between the trade marks of the parties is such that it would necessarily lead to mistaken purchases of the Applicant’s goods under the firm belief that the goods sold under the Trade Mark had the imprimatur of the Opponent but such is not necessary when considering whether the use of a trade mark would lead to confusion.  In Woolworth’s at [50] French J observed:

   The trade mark law concept of confusion in the sense of mere wonderment as to common origin or connection has little part to play in the consumer protection statutes. That, no doubt, is because ‘confusion’ used in that sense, does not of itself lead into error or affect choices at the point of sale.

9. The Opponent has established its opposition under section 60 of the Act.

Decision

1. Subsection 55(1) of the Act provides:

   55Decision

   (1)Unless the proceedings are discontinued or dismissed, 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.

2. I refuse to register application 1407550.

Costs

1. Having been successful in these proceedings, the Opponent is entitled to its costs which I order against the Opponent at the Official Scale.

Iain Thompson

Hearing Officer

Trade Marks Hearings

14 June 2013