Comite Interprofessionnel du Vin de Champagne and Institut National de lOrigine et de la Qualite v Network Nutrition Pty Limited

[2023] ATMO 55

TRADE MARKS ACT 1995

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

ReOpposition by Comité Interprofessionnel du Vin de Champagne and Institut National de l’Origine et de la Qualité to registration of the trade mark subject of application 2039529 (5) – CHAMPAGNE SEED EXTRACT (figurative) – in the name of Network Nutrition Pty Limited

Delegate:                 Robert Wilson

Representation:       Opponent: Luke Merrick of Counsel, instructed by Corrs Chambers Westgarth

Applicant: Elena Szentiványi of Henry Hughes IP Ltd

Decision:                   2023 ATMO 55

Trade Marks Act 1995 (Cth) - Section 52 opposition: ss 42(b), 43 and 61 considered – use of geographical indication in respect of dissimilar goods – trade mark may proceed to registration

Background

1. This decision concerns an opposition brought by Comité Interprofessionnel du Vin de Champagne and Institut National de l’Origine et de la Qualité (INAO) (‘Opponents’) pursuant to s 52 of the Trade Marks Act 1995 (Cth) to registration of the trade mark which is the subject of the application detailed below. The application is in the name of Network Nutrition Pty Limited (‘Applicant’).

Application Number:

2039529

Filing Date:

25 September 2019

Specification:

Class 5: herbal remedies; herbal medicine; herbal dietary supplements; medicinal herbs; medicinal herbal preparations; medicinal herbal infusions

(‘Applicant’s Goods’)

Trade Mark:

(‘Trade Mark’)

2. Unless otherwise indicated, any references in this decision to sections or regulations are references to sections or regulations of the Trade Marks Act 1995 (Cth) or the Trade Marks Regulations 1995 (Cth), respectively.

3. Following advertisement of the application’s acceptance in the Australian Official Journal of Trade Marks, the Opponents filed a Notice of Intention to Oppose the registration and a Statement of Grounds and Particulars (‘SGP’). The SGP nominated grounds of opposition under ss 42(b), 43 and 61. The Applicant subsequently filed a Notice of Intention to Defend.

Evidence

4. The Opponents filed Evidence in Support of their opposition, being:

• Declaration made on 22 April 2021 by Rachel Jane Triggs, the General Manager of Corporate Affairs and Regulations and Registrar of Geographical Indications and Other Terms of Wine Australia, with Exhibits RT-1 and RT-2;

• Declaration made on 28 April 2021 by Alexandre Henri Lévy, the Deputy Head of the Legal and International Department of the lnstitut National de l'Origine et de la Qualité (‘INAO’), with Exhibits AHL-1 to AHL-7 (‘Lévy declaration’);

• Declaration made on 30 April 2021 by Charles Jerome Albert Goemaere, the Director General of the Comité Interprofessionnel du Vin de Champagne (‘CIVC’) at Epernay, with Exhibits CG-1 to CG-3 (‘Goemaere declaration’);

• Declaration made on 23 April 2021 by David Talbot Jordan, consulting viticulturist, with Exhibits DJ-1 to DJ-4;

• Declaration made on 3 May 2021 by Geraldine Coralia Ruth Uriel, agronomist, with Exhibits GU-1 and GU-2. It is noted that GU-2 is not referred to in the declaration;

• Declaration made on 27 April 2021 by Richard Ernest Smart, viticultural scientist and consultant in the international and domestic wine industry, with Exhibits RS-1 to RS-9; and

• Declaration made on 30 April 2021 by Thierry Lacombe, Professor of Vine Diversity at the Institut Agro - Montpellier SupAgro, with Exhibits TL-1 to TL‑2.

5. The Applicant filed Evidence in Answer, being:

• Declaration made on 8 November 2021 by Ryan Gorman, the Brand Director of the Applicant, with Exhibits RG-1 to RG-3 (‘Gorman declaration’); and

• Declaration made on 5 November 2021 by Sheena Vinden, the Senior Partner at Atkinson Vinden Lawyers, the Australian based attorney acting for the Applicant, with Exhibits SV-1 to SV-7.

6. The Opponents relied on the following Evidence in Reply (‘EIR’):

• Declaration made on 28 April 2022 by Alexandre Henri Lévy, with Exhibit AHL-9. This declaration simply corrects an error in the signed date of a declaration which was filed earlier as EIR. Exhibit AHL-9 is a declaration dated (incorrectly) 12 April 2021, by Alexandre Henri Lévy, with Exhibit AHL-8; and

• Declaration made on 13 April 2022 by Stephen Marcus Stern, a partner at Corrs Chambers Westgarth the Opponent’s representatives in this opposition, with Exhibits SMS-1 and SMS-2.

7. Once the time allowed for filing evidence had ended both parties requested an oral hearing.  I heard the matter on 14 March 2023 as a delegate of the Registrar of Trade Marks. Luke Merrick of Counsel, instructed by Stephen Stern of Corrs Chambers Westgarth appeared for the Opponents. Elena Szentiványi of Henry Hughes IP Ltd appeared for the Applicant. Both representatives’ oral submissions were supplemented by written submissions which were filed prior to the hearing.

The Opponents

CIVC

8. According to the Goemaere declaration:

The CIVC is the interprofessional union of all growers, producers and negociants or merchants who grow, produce and/or deal in Champagne wines. …

The CIVC is based in Epernay and represents the professionals from the Champagne region. This interprofessional committee was created to give those persons it represents a forum to meet, discuss and resolve issues and to address common problems. It was also created in order to facilitate joint marketing and promotion of the wines of the Champagne region.

In addition, the protection of the intellectual property in the name Champagne [is] considered to be vitally important. … This name is seen by the interprofession to be the essential part of the common property and heritage of the members of the interprofession.

The CIVC was created as an interprofession by the making by the French Government of a Law … on 12 April 1941.

INAO

9. According to the Lévy declaration:

[A 1935 French Law] set up the modern system of controlled appellations of origin [(‘AOCs’)] and created a statutory body (now called the INAO and described in the paragraphs below) and a system of administrative powers and controls to create and enforce the new system. …

The 1935 Law gave relatively wide regulatory powers to the INAO. The central Article 21 of that Law created the category of appellations d’origine contrȯlées and provided that it was to be the INAO that determined what appellations of origin were to be controlled appellations of origin. …

Since its creation by the 1935 Law, the INAO has established and regulated a system of AOC’s  by which a product, to be entitled to use an appellation of origin, must not only originate from the defined area (which has been defined so as to include only suitable lands), but must be made in accordance with all of the standards imposed by law, including such matters as grape varieties, planting and cultivation methods, pruning methods, harvesting times, vinification methods, minimum alcoholic content and other matters.

The Applicant

1. According to the Gorman declaration:

   [The Applicant] commenced operations in 2004. Committed to revolutionising ingredient supply to the complimentary medicine industry. Initially based in Australia and focused on the Australian and New Zealand marketplace, we expanded our presence globally and now sell our products in over 50 countries. …

   Collectively, [the Applicant’s] range of ingredients, combined with a select range from carefully chosen and vetted supply partners, comprise the 200+ products that [the Applicant] designs, manufactures, markets and distributes globally.

   [The Applicant’s] prime function is the provision of quality herbal extract raw materials for use in complementary medicines, functional foods, natural animal health products and cosmetics … [The Applicant] has used the CHAMPAGNGE SEED EXTRACT since at least June 2019. …

   The product marketed under my Company’s CHAMPAGNE SEED EXTRACT trade mark is extracted from the seeds of Champagne-Ardenne region grapes exclusively. My company is ultimately a downstream customer of the Champagne sparkling wine producers that the Opponents represent. Monsieur Lévy of INAO has stated that the seed of the grapes used in the production of Champagne are rejected from the wine making process … My company purchases the waste material that comes from the Champagne sparkling wine producers.

Grounds of Opposition, Onus and Standard of Proof

1. As indicated above, in the SGP the Opponents nominated grounds of opposition under ss 42(b), 43 and 61; all grounds were pressed at the hearing. The burden of proof rests upon the Opponents.[1] The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[2] The date at which the rights of the parties are to be determined is 25 September 2019, being the filing date of the application (‘Relevant Date’).[3]

Discussion

[1] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[2] Telstra Corporation Limited v Phone Directories Company Ltd [2015] FCAFC 156, [132]-[133] (Besanko, Jagot and Edelman JJ).

[3] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [2] (Kitto J).

Interpretation and Connotation of ‘Champagne’

1. The Trade Mark is comprised of a number of elements. Of those elements, the word ‘Champagne’ is of particular importance. How that term is likely to be interpreted by persons exposed to the Trade Mark and the connotation which arises from that interpretation is relevant to all of the nominated grounds of opposition. It is necessary that these questions are considered in the context of the Trade Mark as a whole and in the context of its proposed application to the Applicant’s Goods (being herbal remedies etc). How the term is likely to be interpreted is akin to the ‘ordinary signification’ question described in Cantarella[4] (a test which is undertaken when assessing the inherent adaptation of a trade mark to distinguish): that assessment being to determine the ordinary signification ‘of the word in Australia, to persons who will purchase, consume or trade in the goods’.[5] For our purposes here, once the ordinary signification of ‘Champagne’ is determined, an assessment is then made as to the connotation which that word gives rise to in the contexts referred to above.

   [4] Cantarella Bros Pty Ltd v Modena Trading Pty Limited [2014] HCA 48 (French CJ, Hayne, Crennan and Kiefel JJ).

   [5] Ibid [59].

2. The word ‘Champagne’ is commonly understood to refer to a sparkling wine produced in France. According to the Lévy declaration, ‘Champagne’ is an appellation d’origine contrȯlée (‘AOC’). As a consequence,

   the (sparkling) wines of Champagne [must] originate from the defined area [and] be made in accordance with all of the standards imposed by law, including such matters as grape varieties, planting and cultivation methods, pruning methods, harvesting times, vinification methods, minimum alcoholic content and other matters.

3. The Lévy declaration and the Goemaere declaration refer to the ‘Champagne district’ and ‘the Champagne region’ respectively. The 1941 French law which created the CIVC, ‘charged the CIVC’ with functions including ‘organising, supervising and directing production, distribution, processing and trading … of wines produced in the Champagne region’.

4. It is apparent from the above that ‘Champagne’ can refer to the sparkling wine itself, or to the geographical area in which it is produced. Those are not the only meanings of ‘Champagne’; ‘champagne’ is also a noun meaning, ‘a very pale yellow or cream colour’, and an adjective meaning, ‘having the colour of champagne’.[6] In the context of the Trade Mark and the relevant goods, the meanings related to colour are unlikely to be seen as ordinary significations of the word, that is, the word is unlikely to be seen to refer to the colour of the Applicant’s Goods. It is only the ordinary significations of the sparkling wine itself, and the wine making region, which have attracted the Opponent’s attention; it is these meanings which will be taken into account when considering connotation.

   [6] The Macquarie Dictionary (The Macquarie Library Pty Ltd) (2^nd revision, 1987), 319.

5. Having determined the ordinary significations of ‘Champagne’, any connotation(s) which are likely to arise will be considered. In Pfizer Products Inc v Karam, Gyles J said in respect of the meaning of connotation as used in s 43:

   ‘Connotation’ is a secondary meaning implied by the mark. The likelihood of deception or confusion must flow from the secondary meaning inherent in the mark itself. It is apparent that the underlying purpose of s 43 is a similar purpose to that lying behind ss 52, 53 and 55 of the Trade Practices Act 1974 (Cth). It is to prevent the public being deceived or confused as to the nature of the goods offered by reason of a secondary meaning connoted by the mark in question, rather than, for example, deception by reason of similarity with other marks … Section 43 might well prevent the registration of HERBAGRA for classes of goods with no connection with herbal ingredients.[7]

   [7] [2006] FCA 1663, [53].

6. It is noted that Gyles J’s view that the connotation ‘is a secondary meaning implied by the mark’ is somewhat inconsistent with the Explanatory Memorandum to the Trade Marks Bill 1995 (Cth). The memorandum states that ‘because of some signification inherent to [a trade mark it] would be likely to deceive or cause confusion regarding a characteristic of the goods or services’.[8] Interpreted in the light of the memorandum, the connotation in s 43 may arise not only from a secondary meaning implied by a trade mark, but also from a direct and obvious signification of a trade mark as a whole, or an element within a trade mark. The Opponents in this matter seek to rely upon significations of the latter nature; it is accepted that this is appropriate under the broader interpretation of the term ‘connotation’.

   [8] See page 10 (emphasis added).

7. With respect to connotation, the Opponents submitted:

   The name CHAMPAGNE is the most prominent, and the central, feature of the Mark. It is much more prominent in size and colour (using a striking gold colour) and much more memorable than the crown device which sits above it … Further, it is much more prominent and memorable than the words ‘seed extract’ which sits below it in much smaller standard black text and which are, plainly, descriptive of a product.

   Accordingly, the aspect of the Mark which is likely to be the focus of a consumer’s attention is the name CHAMPAGNE. Inevitably, that brings to mind Champagne wines. Once that is the context of the Mark, the words ‘seed extract’ serve to indicate that the Goods are somehow a ‘seed extract’ connected with ‘Champagne’.

8. The Opponents then referred to statements in the Goemaere declaration, including the following:

   By using the name ‘Champagne’ as part of its mark, the Applicant seeks to refer to Champagne. Conceptually, the name ‘Champagne’ will be associated with the wine-growing region of Champagne and the sparkling wines which originate there.

9. The Opponents also submitted:

   There are various ways consumers might understand the connotation of the Mark. For example, that:

   (a)there is some connotation with, or association between, Champagne (either as a region or its wines) and Goods bearing the Mark;

   (b)the Goods bearing the Mark are made or derived from ‘Champagne seeds’ or ‘Champagne grapes’;

   (c)the Goods bearing the Mark have some of the qualities or characteristics associated with Champagne; and/or

   (d)the Goods bearing the Mark are made from Champagne wine.

10. In broad agreement with the Opponents on this question, the Applicant’s view on connotation is that, ‘The connotation of the Applicant’s trade mark is that the Goods are made from seeds extracted from grapes used in the making of Champagne and/or grapes grown in the Champagne region’. I am of the view that the connotation of the Trade Mark is as formulated by the Applicant.

11. I note that Champagne wine is not restricted to being made from a single variety of grapes. There is, therefore, no particular ‘Champagne grape’ and by extension no particular ‘Champagne seed’. I am of the view that this does not significantly affect the connotations described above.

Section 43

1. Section 43 provides:

   An application for the registration of a trade mark in respect of particular goods or services must be rejected if, because of some connotation that the trade mark or a sign contained in the trade mark has, the use of the trade mark in relation to those goods or services would be likely to deceive or cause confusion.

2. The particulars in the SGP for this ground included:

   The dominant element of the opposed mark is the word CHAMPAGNE. A secondary element of the opposed mark is the phrase SEED EXTRACT.

   The opposed mark conveys that the products to which it may be applied:

   (a)have a connection with Champagne; and/or

   (b)are derived from grapes used to make Champagne.

   Accordingly, the mark is likely to deceive or cause confusion because the mark may legitimately be used in respect of a range of herbal products not connected with, or derived from, Champagne in any way.

   The mark also conveys that the products to which it may be applied are derived from a single type of ‘Champagne grape’. This is also likely to deceive or cause confusion because there is no ‘Champagne grape’ – Champagne may be made from several grape varieties under the Champagne AOC/AOP Specifications.

3. In McCorquodale v Masterson, Kenny J stated:

   In an opposition to registration, s 43 of the Act requires an opponent to show that: (1) there is a connotation in the proposed trade mark or in a part of it; and (2) because of this connotation, the use of the proposed mark would be likely to deceive or cause confusion. The connotation must be contained within the mark itself.[9]

   [9] [2004] FCA 1247, [25] (‘McCorquodale’) (citation omitted).

4. For this ground of opposition to succeed, the Opponent must establish that there is a ‘real tangible danger’ of deception or confusion.[10]

   [10] Ibid [35].

5. It was stated in the Gorman declaration:

   The product marketed under [the Trade Mark] is extracted from the seeds of Champagne-Ardenne region grapes exclusively. My company is ultimately a downstream consumer of the Champagne sparkling wine producers that the Opponents represent. Monsieur Lévy of INAO has stated that the seed of the grapes used in the production of Champagne are rejected from the wine making process … [The Applicant] purchases the waste material that comes from Champagne sparkling wine production. …

   [The Applicant] selects only seeds from the French Champagne region …

   [The Applicant] purchases the dried seed from the Champagne-Ardenne region before further processing for use in dietary supplements.

6. The connotations discussed above, are likely to give rise to an expectation of consumers that the Applicant’s Goods are made from seeds extracted from grapes used in the making of Champagne and/or from grapes grown in the Champagne region. The Gorman declaration asserts that this is, in fact, where the seeds are sourced. The Opponents submitted that this is not sufficient, for reasons including that it is impossible to verify by testing a particular seed from where it was sourced. While the assertion re testing may be so, I am not persuaded that this affects the assessment of likelihood of deception or confusion. It seems likely that many trade marks would contain connotations which are not verifiable by testing; this is not a matter with which the Registrar ought to concern herself. In very many cases it is possible that a trade mark could be used in a manner which does not conform to a connotation within it. Such a possibility does not warrant refusal of registration based on s 43. If, once registered, a trade mark is used in such a manner, a concerned person has recourse to the Competition and Consumer Act 2010 (Cth) and the usual remedies available there.

7. I am not satisfied that there is a real and tangible danger that the consumer’s expectations may turn out to be false and result in deception or confusion. Consequently, this ground of opposition is not established.

Section 42(b)

1. Section 42 is reproduced below:

   42 Trade mark scandalous or its use contrary to law

   An application for the registration of a trade mark must be rejected if:

   (a) …

   (b) its use would be contrary to law.

2. The onus is on the Opponents to establish that use of the Trade Mark would be, rather than could be, contrary to law on the balance of probabilities.[11] The relevant time for assessing whether the use of the Trade Mark would be contrary to law is at the Relevant Date but ‘looking forward to prospective conduct after registration’.[12]

   [11] Advantage Rent-a-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683 (Madgwick J).

   [12] Time Warner Entertainment Co LP v Stepsam Investments Pty Ltd [2003] FCA 1502 [42] (Wilcox J).

3. The ground of opposition pursuant to s 42 was particularised in the SGP as follows:

   The prominent use of the word CHAMPAGNE in the opposed mark conveys representations that the products to which it may be applied:

   (a)have a connection with Champagne; and/or

   (b)are derived from grapes used to make Champagne.

   Those representations are misleading, deceptive and/or false.

   Accordingly, use of the mark would contravene:

   (c)s 18 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL); and

   (d)s 29(1)(a) and 33 of the ACL.

4. The basis for this ground of opposition is essentially the same as that relied upon by the Opponents in respect of the s 43 ground of opposition. This ground of opposition is not established for the same reasons that the s 43 ground was not established.

Section 61

1. Section 61 provides:

   61 Trade mark containing or consisting of a false geographical indication

   (1)  The registration of a trade mark in respect of particular goods (relevant goods) may be opposed on the ground that the trade mark contains or consists of a sign that is a geographical indication for goods (designated goods) originating in:

   (a)  a country, or in a region or locality in a country, other than the country in which the relevant goods originated; or

   (b)  a region or locality in the country in which the relevant goods originated other than the region or locality in which the relevant goods originated;

   if the relevant goods are similar to the designated goods or the use of a trade mark in respect of the relevant goods would be likely to deceive or cause confusion.

   (2)  An opposition on a ground referred to in subsection (1) fails if the applicant establishes that:

   (a)  the relevant goods originated in the country, region or locality identified by the geographical indication; or

   (aa)  the sign is not recognised as a geographical indication for the designated goods in the country in which the designated goods originated; or

   (b)  the sign has ceased to be used as a geographical indication for the designated goods in the country in which the designated goods originated; or

   (c)  the applicant, or a predecessor in title of the applicant, used the sign in good faith in respect of the relevant goods, or applied in good faith for the registration of the trade mark in respect of the relevant goods, before:

   (i)  1 January 1996; or

   (ii)  the day on which the sign was recognised as a geographical indication for the designated goods in their country of origin;

     whichever is the later; or

   (d)  if the registration of the trade mark is being sought in respect of wine or spirits (relevant wine or spirits)—the sign is identical with the name that, on 1 January 1995, was, in the country in which the relevant wine or spirits originated, the customary name of a variety of grapes used in the production of the relevant wine or spirits.

   (3)  An opposition on a ground referred to in subsection (1) also fails if the applicant establishes that:

   (a)  although the sign is a geographical indication for the designated goods, it is also a geographical indication for the relevant goods; and

   (b)  the applicant has not used, and does not intend to use, the trade mark in relation to the relevant goods in a way that is likely to deceive or confuse members of the public as to the origin of the relevant goods.

   (4)  An opposition on a ground referred to in subsection (1) also fails if the applicant establishes that:

   (a)  the sign consists of a word or term that is a geographical indication; and

   (b)  the word or term is a common English word or term; and

   (c)  the applicant has not used, and does not intend to use, the trade mark in relation to the relevant goods in a way that is likely to deceive or confuse members of the public as to the origin of the relevant goods.

   Note 1:       For applicant, predecessor in title and geographical indication see section 6.

   Note 2:       For originate (in relation to wine only) see section 15.

2. The term ‘geographical indication’ (‘GI’) within s 61 has the meaning as defined in s 6:

   geographical indication, in relation to goods, means a sign that identifies the goods as originating in a country, or in a region or locality in that country, where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin.

3. As a starting point, in accordance with s 61, to establish this ground of opposition the Opponents must establish a number of factors:

   ·     that the Trade Mark contains or consists of a sign that is a GI for designated goods;

   ·     the geographical location to which the GI refers;

   ·     that the relevant goods did not originate in that geographical location.

However, the opposition can only be successful if one of the below is also established:

• the relevant goods are similar to the designated goods (‘Similarity Requirement’); or

• the use of the Trade Mark in respect of the relevant goods would be likely to deceive or cause confusion (‘Deception or Confusion Requirement’).

1. This ground of opposition was particularised in the SGP as follows:

   CHAMPAGNE is a GI in respect of wine originating from a specific region in France.

   [T]he use of the opposed mark in respect of the products to which it may be applied would be likely to deceive or cause confusion for the reasons outlined above in connection with s 43.

2. The Opponents submitted:

   The threshold requirements of s 61 are made out.

   (a)CHAMPAGNE is a geographical indication for wines originating in a region of France.

   (b)The Mark contains the geographical indication CHAMPAGNE.

   (c)It would be a fair and normal use of the Mark to apply it to Goods which originate from, for eg, Australia.

   Section 61 is otherwise satisfied because, for the reasons outlined above [in respect of the previous grounds], the use of the Mark in respect of the Goods would be likely to deceive or cause confusion.

3. It is not controversial that ‘Champagne’ is a GI protected under the Wine Australia Act 2013 (Cth) and relates to wine from the Champagne region in France. For the purposes of this opposition, the ‘designated goods’ are wine and the ‘relevant goods’ are the Applicant’s Goods.

4. It is not suggested in the SGP that that the Applicant’s Goods are similar to wine; and on an assessment of the nature of the respective goods, their uses, and their trade channels, it is my view that they are not. The Similarity Requirement is therefore not established.

5. The likelihood of deception or confusion was considered in respect of the grounds of opposition under ss 42(b) and 43. The conclusion there was that deception or confusion arising out of the use of the Trade Mark in respect of the Applicant’s Goods was unlikely. As the same considerations apply here, the Deception or Confusion Requirement has not been established. As neither the Similarity Requirement nor the Deception or Confusion Requirement have been established, this ground of opposition is not established. It is unnecessary to consider the remaining requirements of s 61.

Decision

1. Section 55 relevantly provides:

   55Decision

   (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.

2. The Opponents have not established any of the grounds of opposition they nominated in the SGP. Accordingly, trade mark 2039529 may proceed to registration after one month from the date of this decision. If the Registrar has been served with a notice of appeal before that time, I direct that registration shall not occur until either the appeal is withdrawn or a court so orders.

Costs

1. The Applicant sought an award of costs in its favour. I see no reason to depart from the general rule that costs follow the event. As the Opponents have not established a ground of opposition, I award costs against the Opponents under s 221 in line with the amounts in Schedule 8 of the Trade Mark Regulations 1995 (Cth).

Robert Wilson
Hearing Officer
Delegate of the Registrar of Trade Marks
26 April 2023