Dickey's Barbecue Pit Inc v Lion Global Pty Ltd
[2024] ATMO 68
•18 April 2024
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
ReOppositions by Dickey’s Barbecue Pit Inc to registration of the trade mark the subject of applications 2109924 (43) and 2205682 (35) – DICKIES – in the name of Lion Global Pty Ltd
Delegate: Robert Wilson
Representation: Opponent: Stephen Rebikoff of Counsel, instructed by Vardon Legal
Applicant: David Larish of Counsel and Sophie Yates of Counsel, instructed by John Swinson Legal
Decision: 2024 ATMO 68
Trade Marks Act 1995 (Cth) - Section 52 opposition: ss 42(b), 59, 60 and 62A considered – opposition to 2109924 successful under s 59 – registration refused for 2109924 – opposition to 2205682 partially successful under s 59, no other ground established – applicant requested amendment to specification for 2205682 – 2205682 may proceed to registration for amended services
Background
1. This decision concerns oppositions to registration of the trade mark DICKIES (‘DICKIES Mark’) which is the subject of the two applications detailed below. The oppositions were brought by Dickey’s Barbecue Pit Inc (‘Opponent’) pursuant to s 52.[1] The applications are in the name of Lion Global Pty Ltd (‘Applicant’).
[1] Unless otherwise indicated, any references to sections or regulations, below, are references to sections or regulations of the Trade Marks Act 1995 (Cth) or the Trade Marks Regulations 1995 (Cth), respectively.
Application Number:
2109924 (‘924 Application’)
Filing Date:
6 August 2020
Specification:
Class 43: Bar services; Coffee bar and coffee house services (provision of food and drink); Inn keeping (bar, restaurant and accommodation); Salad bar restaurant services; Snack bars (provision of food and drink); Snack-bars; Wine bar services
(‘924 Services’)
Application Number:
2205682 (‘682 Application’)
Filing Date:
26 August 2021
Specification:
Class 35: (including) Advertising; Business franchising services (group purchasing, group advertising); Pay per click advertising
The full specification appears in the Appendix to this decision
(‘682 Services’)
2. Together, the 924 Services and the 682 Services will be referred to as the ‘Designated Services’.
3. Following publication of notices of acceptance of the applications, the Opponent filed Notices of Intention to Oppose registration of the DICKIES Mark. These were followed by Statements of Grounds and Particulars (‘SGPs’). The SGPs nominated grounds of opposition under ss 42(b), 43, 58, 59, 60 and 62A. The Applicant subsequently filed Notices of Intention to Defend both oppositions. Notwithstanding they relate to the same trade mark, there are, therefore, two oppositions on foot. The first opposition was filed in connection with the 924 Application (‘924 Opposition’). The second was filed in connection with the 682 Application (‘682 Opposition’).
Evidence
4. The Opponent filed the following evidence during the evidence stages of the proceedings:
In respect of the 924 Opposition:
·Declaration made on 5 August 2021 by Jay Rooney, the Chief Financial Officer of the Opponent, with Exhibits JR-1 to JR-48 (‘Rooney 1’) as Evidence in Support; and
·Declaration made on 6 January 2022 by Jay Rooney with Exhibits JR-1 to JR-19 as Evidence in Reply.
In respect of the 682 Opposition:
·Declaration made on 15 September 2022 by Jay Rooney with Exhibits JR-1 to JR-55 as Evidence in Support; and
·Declaration made on 15 February 2023 by Jay Rooney with Exhibits JR-1 to JR-9 (‘Rooney 4’) as Evidence in Reply.
oThis declaration includes the Tretheway declaration (discussed below) as Exhibit JR-8.
5. The Applicant filed the following Evidence in Answer during the evidence stage of the proceedings:
In respect of the 924 Opposition:
·Declaration made on 6 November 2021 by Sean Fogerty, the Managing Director and founder of the Applicant, with Exhibits SF-001 to SF-006 (‘Fogerty 1’).
In respect of the 682 Opposition
·Declaration made on 17 December 2022 by Sean Fogerty with Exhibits SF-001 to SF‑009.
6. Once the period for filing evidence had concluded both parties requested to be heard. I heard the matter as a delegate of the Registrar of Trade Marks on 6 November 2023. The Opponent was represented by Stephen Rebikoff of Counsel, instructed by Vardon Legal. The Applicant was represented by David Larish and Sophie Yates of Counsel, instructed by John Swinson Legal. Counsels’ oral submissions were supplemented by written summaries of submissions which were filed prior to the hearing.
The Tretheway declaration
7. On 10 March 2022, the Opponent filed a declaration made on that date by Fiona Tretheway, a partner of Vardon Legal, the legal representative of the Opponent (‘Tretheway declaration’). The declaration was filed on IP Australia’s online document portal in respect of the 924 Opposition, along with a request that the declaration be considered as ‘additional evidence’. Correspondence stating why the Tretheway declaration should be considered was filed along with the Tretheway declaration. The Opponent submitted in that correspondence that the declaration ‘be accepted as additional evidence filed out of time in accordance with section 2.5 of the Trade Marks Manual of Practice and Procedure (‘Manual’)’. This is taken to be a reference to Part 51.2.5 of the Manual which deals with ‘Evidence filed out of time’.
8. The Tretheway declaration was also filed as an exhibit to Rooney 4 as part of the Opponent’s Evidence in Reply in the 682 Opposition. The Applicant submitted that the Tretheway declaration was not in fact evidence in reply in the 682 Opposition, rather that it should have been filed as evidence in support. What follows, therefore, is a consideration of whether the declaration will be considered in each of the oppositions.
9. As a general rule, evidence that is not filed in time is not considered by the Registrar when deciding an opposition; however, ‘The Registrar is not bound by the rules of evidence, but may be informed on any matter that is before the Registrar in a way that the Registrar reasonably believes to be appropriate’.[2] Where the Registrar intends to take out of time evidence into account, the principles of natural justice require that the other side be given an opportunity to respond to that evidence.[3]
[2] Regulation 21.15(4).
[3] See also the Registrar’s obligations under reg 21.19.
10. A party seeking to have out of time evidence considered by the Registrar should address a number of factors in its submissions in support of the consideration of that evidence. These include:
·Why the evidence was filed after the due date
·If the evidence stage in proceedings has concluded and the matter is ready for determination, why the evidence was not filed earlier
·What the evidence shows
·Why that information is crucial to the Registrar’s decision
·Why it is in the public interest to have the information considered
·What is the balance of convenience for the parties if the information is considered
11. Notice was issued in the 924 Opposition on 7 January 2022 which indicated that the evidence stage had concluded. The Tretheway declaration was, therefore, filed after the conclusion of the evidence stage in that opposition. It was noted above that the declaration was filed as Evidence in Reply in the 682 Opposition. The declaration could have been filed as Evidence in Support in the 682 Opposition as the period for filing that evidence ended some six months after the declaration was filed in connection with the 924 Opposition.
12. In support of the consideration of the Tretheway declaration in the 924 Opposition, the Opponent submitted in the supporting letter:
[T]he Opponent has only recently become aware of the additional information contained in the declaration. In particular, the Opponent only became aware that the Applicant has sought to register domain names incorporating its name, DICKEY’S, after its evidence was complete.
The additional evidence shows that the Applicant has acted in bad faith and in a manner contrary to the assertions made in the Applicant’s filed evidence by applying to register numerous domain names incorporating the Opponent’s name ‘DICKEYS’ after the commencement of the present opposition.
The additional evidence also shows that, contrary to the evidence of Mr Fogarty, the Applicant lacked an intention to use the DICKIES mark to open a bar in 2017 by reason of Mr Fogarty’s own insistence in other litigation that between 2015-2018 and 2019-2021 he was employed full-time by other companies.
We submit that the evidence is crucial to the delegate’s decision because it goes directly to the grounds of opposition under sections 59 and 62A of the Trade Marks Act.
We also submit that it is in the public interest for ‘a serious opposition [to] be able to be decided on the merits of the case, with all relevant information available to the delegate of the Registrar for the making of that decision’ (citations omitted).
That is particularly so as the evidence is all contained in publicly available databases and would be available to the Registrar under regulation 21.19 in any event (particularly the published judicial decisions, which arguably do not constitute evidence at all).
Finally, we submit that the balance of convenience favours the receipt of the additional evidence given the importance of the evidence to the opponent’s case and the lack of any prejudice to the Applicant. The hearing date has not yet been set and it will be open to the Applicant to respond to the evidence without the need to cause any delay to the opposition process.
13. At the hearing the Opponent submitted that:
[I]n circumstances where the declaration is already in evidence in relation to [the 682 Opposition], and is plainly relevant to the issues in both oppositions, … the declaration ought also be admitted as evidence in relation to [the 924 Opposition].
14. At the hearing, the Applicant made submissions against the consideration of the Tretheway declaration in both oppositions:
The Applicant notes that the Opponent had a subsequent opportunity to file the Trethewey declaration, as evidence in support of [the 682 Opposition]. If it had done so, the declaration would have been before the Delegate in the ordinary sequential course, and the Applicant would have had the opportunity to respond to it in its evidence in answer for [the 682 Opposition].
Instead, the Opponent elected only to include the Tretheway declaration as an exhibit to the Opponent’s evidence in reply to [the 682 Opposition].
This was inappropriate. The Tretheway declaration is not properly characterised as evidence in reply. This forensic choice has given rise to procedural unfairness, in that there was no further evidence phase permitting a response. Accordingly, the Delegate should disregard the Tretheway declaration. …
[T]he Opponent’s Letter states the evidence should be accepted because it is probative of the 62A and 59 grounds of opposition. However, the Tretheway declaration is irrelevant to those grounds and does not assist the delegate, because:
(a)The domain name records annexed to the Tretheway declaration relate to domain names that do not use [the Applicant’s Trade Mark]. Whatever that evidence may show, it says nothing of the Applicants’ bona fides or intention to use [the Applicant’s Trade Mark]; and
(b)The decisions of the WIPO Arbitration and Mediation Centre and Fair Work Commission in 2008, 2018 and 2021, are not evidence of the matters recorded within those decisions; cf s 91 of the Evidence Act 1995 (Cth). The Opponent acknowledges in the Opponent’s Letter that ‘the published judicial decisions … arguably do not constitute evidence at all’. …
In those circumstances, the Delegate should disregard the Tretheway declaration in the opposition.
15. I am inclined to the Applicant’s view on the consideration of the Tretheway declaration in the 924 Opposition. Having considered the relevant factors, I am not satisfied that it is appropriate to take the declaration into account in that matter. Accordingly, the Tretheway declaration does not form part of the evidence in the 924 Opposition.
16. In respect of the 682 Opposition, I am persuaded that to the extent that the Tretheway declaration contains evidence, that evidence was not properly Evidence in Reply and should have been filed as Evidence in Support; thereby, providing the Applicant an opportunity to provide Evidence in Answer to the declaration. Nevertheless, I am of the view that the declaration ought to be before the Registrar in the 682 Opposition. To ensure procedural fairness in respect of the Tretheway declaration the Applicant was given an opportunity following the hearing to file evidence in response to the Tretheway declaration. The Applicant did so by filing a declaration made on 29 February 2024 by Sean Fogerty and I have considered this evidence.
The Opponent
17. According to Rooney 1:
The Opponent operates a very successful franchise business which originated in Dallas, Texas in 1941. Dickey’s Barbecue Pit is the world’s largest barbecue franchise. The menu focuses on Texas-style authentic, slow-smoked barbecue cuisine.
There are now over 500 Dickey’s Barbecue Pit locations throughout 44 states in the United States. Dickey’s Barbecue Pit has also franchised into other countries including Brazil, the Islamic Republic of Pakistan, United Arab Emirates and Egypt.
The Opponent is currently offering franchise opportunities in Australia, New Zealand, Vietnam, South Korea, Philippines, Japan, Mexico, Argentina, Peru, Qatar, N. Africa, England, Ireland, Finland, Scotland, Denmark, Germany, Poland, Wales, The Caribbean and Canada.
The Opponent has accordingly built up a valuable reputation and goodwill in the Dickey’s brand as indicating its global barbecue franchise system.
18. The Opponent is the owner of the applications detailed below:
Application Number:
2134893
Priority Date:
10 November 2020
Specification:
Class 43: Restaurant, carry-out restaurant and catering services
(‘Opponent’s Services’)
Trade Mark:
DICKEY’S
Application Number:
2134894
Priority Date:
10 November 2020
Specification:
Opponent’s Services
Trade Mark:
19. The status of both of the Opponent’s applications at the time of writing this decision is ‘Published: Under examination – Deferred’. The 924 Application was cited under s 44 during examination as founding a ground for rejecting each of the Opponent’s applications and remains, at the time of writing, a barrier to acceptance of the applications.
The Applicant
20. According to Fogarty 1:
The Applicant was incorporated on 23 June 2000. …
The Applicant has been involved in the bar industry in Australia for over 20 years.
The Applicant operates the well-known online website BARGUIDE. …
The Applicant has been operating the BARGUIDE website continuously since around 2004. The BARGUIDE website has a focus of providing information about bars, and restaurants with bars, to consumers in Australia. The BARGUIDE website is a well-established directory, data and informational business.
The Applicant has affiliate arrangements with many different businesses, where the Applicant receives payment for referring customers or web traffic to these businesses. … The Applicant has affiliate arrangements with many types of businesses, including many that provide services within class 43 of the International Classification of Goods and Services.
In 2017, the Applicant decided to open and operate a bar in Sydney and also reviewed other possible Australian locations. The Applicant decided on [the DICKIES Mark] as the name and branding of this potential new bar in 2017. The Trade Mark was selected because it was a catchy name for a bar, and no other party to the Applicant’s knowledge used it in Australia for a bar or in the fields the Applicant operated and planned to operate in the future.
Grounds of Opposition, Onus and Standard of Proof
21. As indicated above, in the SGPs the Opponent nominated grounds of opposition under ss 42(b), 43, 58, 59, 60 and 62A. At the hearing the Opponent pressed only the grounds pursuant to ss 42(b), 59, 60 and 62A. The onus of proof in an opposition rests upon the Opponent.[4] The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[5] The dates at which the rights of the parties are to be determined is 6 August 2020 in respect of the 924 Opposition, and 26 August 2021 in respect of the 682 Opposition; those dates being the filing dates of the respective applications.[6] The filing dates are also the priority dates for the purposes of s 60.
Discussion
[4] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
[5] Telstra Corporation Limited v Phone Directories Company Ltd [2015] FCAFC 156, [132]-[133] (Besanko, Jagot and Edelman JJ).
[6] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82, [2] (Kitto J).
Section 59
22. In the SGPs the Opponent particularised this ground of opposition as follows:
(1) The Applicant is a digital media and internet company and is not involved in any businesses providing class 43 services.
(2) The Applicant therefore did not intend at the date of application to use [the DICKIES Mark] or to authorise its use in Australia.
23. Section 59 of the Act is reproduced below:
Applicant not intending to use trade mark
The registration of a trade mark may be opposed on the ground that the applicant does not intend:
(a) to use, or authorise the use of, the trade mark in Australia, or
(b) to assign the trade mark to a body corporate for use by the body Corporate in Australia;
in relation to the goods and/or services specified in the application.
24. There is a presumption of intention to use which arises from an applicant’s act of filing an application for registration.[7] The onus of establishing this ground remains with an opponent unless, or until, it has established a prima facie case of the applicant’s lack of intention, at which point the onus moves to the applicant for rebuttal.[8] The intention to use a trade mark must exist at the date of application;[9] consequently, it is incumbent upon an opponent to establish that the applicant did not intend to use the trade mark at the time of filing. The relevant intention requires that an applicant must have ‘a real intention to use, not a mere problematic intention, not an uncertain or indeterminate possibility, but it means a resolve or settled purpose which has been reached at the time when the mark is to be registered’.[10] There must be ‘a real and definite intention’ to use the mark publicly as a trade mark in connection with the services applied for.[11]
[7] Aston v Harlee Manufacturing Co (1960) 103 CLR 391, 401 (Fullagar J) (‘Aston’).
[8] Ibid [163].
[9] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [74] (Keane CJ, Stone and Jagot JJ).
[10] Re Ducker’s Trade Mark (1928) 45 RPC 397, 402.
[11] Health World Ltd v Shin-Sun Australia Pty Ltd [2008] FCA 100, [158] (Jacobson J).
25. Where the specification of goods and services in an application extends well beyond the goods or services in respect of which the applicant has previously used the mark, and the applicant has come nowhere near to launching the mark in relation to such goods or services, that is
indicative of an approach to registration that is not aligned with genuine intention, but rather to a desire to cover a field beyond the range of expected or intended use. Such an approach diminishes the benefit of any imputation arising from the fact of registration itself in the sense contemplated in Aston.[12]
[12] Goodman Fielder Pte Ltd v Conga Foods Pty Ltd [2020] FCA 1808, [152] (Burley J) (‘Goodman Fielder’).
26. For ease of reference, a timeline of relevant applications is provided below.
Application Date
Application
Trade Mark
Class
6 August 2020
Applicant’s 924 Application
DICKIES
43
10 November 2020
Opponent’s 893 Application
DICKEY’S
43
10 November 2020
Opponent’s 894 Application
43
26 August 2021
Applicant’s 682 Application
DICKIES
35
27. In applying the law to circumstances of this matter, the Opponent submitted:
In this case, it is clear on the evidence that the Applicant has never used [the DICKIES Mark] in respect of any of the class 43 services for which it seeks registration (bar and restaurant-type services) or the overwhelming majority of the class 35 advertising services (including, in particular, business franchising services and advertising services related to franchising).
[T]he Applicant claims that it decided to open a bar under the DICKIES Mark in 2017, and that its failure to use the mark since that time was simply because of changed trading conditions brought about by the COVID-19 pandemic …
[D]espite Mr Fogarty’s claims to the contrary … there is no evidence of any steps being taken by the Applicant in relation to the use of [the DICKIES Mark] for any services (other than pay-per-click advertising) prior to receiving notice of the Opponent’s intention to oppose the registration of the marks.
On the contrary, the evidence is that it was only after becoming aware of the Opponent’s challenge to the registration of the marks that the Applicant sought to take any steps to make enquiries as to the use of [the DICKIES Mark] or promote the use of [the DICKIES Mark] in connection with the Specified Services… In those circumstances, the Opponent contends that the recent steps claimed to have been undertaken by the Applicant are not reflective of a genuine intention to use [the DICKIES Mark] in respect of the Specified Services as at the relevant priority dates. …
[I]n relation to the application for registration in respect of class 35 services, it is clear that the specification for such services extends well beyond anything that could even remotely be said to have been the subject of a legitimate and genuine intention to use, having regard to the nature of the Applicant’s business and its prior activities … That is particularly so insofar as it seeks registration for franchising services and activities relating to such services, which have never previously been the subject of any interest from the Applicant and which were only the subject of an application for registration after the Applicant received the Opponent’s evidence in this opposition (which made it clear that the Opponent was actively seeking to engage in franchising in Australia) …
In those circumstances, the only proper inference is that the Applicant had no real and definite intention to use [the DICKIES Mark] in respect of any of the Specified Services as at the relevant priority dates …
28. In light of the evidence before me, I find the Opponent’s submissions sufficiently persuasive that it has established a prima facie case of the Applicant’s lack of intention in each of the oppositions. Accordingly, the onus is shifted to the Applicant to rebut the allegation in respect of each of the applications.
29. The Applicant submitted that there is ‘considerable evidence of its intention to use the DICKIES Mark in relation to the Designated Services’ as at the relevant dates. In addition to the presumption arising from the filing of the applications, the evidence relied upon to support this intention was the asserted registration of a domain name, the existence of a website, and use on a Facebook Page. The Applicant referred to paragraphs 11 and 19 of Fogerty 1 to support the submission in respect of the website use and Exhibit SF-005 of Fogerty 1 to support the Facebook use.
30. It is declared at paragraph 11 of Fogerty 1 that, ‘In 2017, the Applicant decided to open and operate a bar in Sydney and also reviewed other possible Australian locations. The Applicant decided on [the DICKIES Mark] as the name and branding of this potential new bar in 2017’. It is declared at paragraph 19 that:
The Applicant registered the domain name dickies.com.au in 2017. The Applicant has operated a website at this domain name since 2017. The website is a commercial website, which promotes the DICKIES brand, which generates pre-launch brand awareness for the DICKIES bar, and as an interim measure, provides other bar related goods and services. Due to Covid many bars and restaurants have had to pivot their business due to Government mandated lockdowns and closures. These include the provision of bar related training courses, and information relevant to home delivery services of alcohol, which are promoted on the DICKIES website. Exhibit SF-004 is a true copy of a printout of the home page of the DICKIES website.
31. Exhibit SF-004 consists of a single page which appears to show the homepage of a website. The DICKIES Mark appears on the page. The page headings shown are ‘Home’, ‘Training and Courses’, ‘Menu’ and ‘Home Delivery’. The web page is typical of what a bricks and mortar bar might have. The services on offer are ostensibly bar services and training services in the areas of bartending and ‘Mixology’; however, by the Applicant’s own admission, no such bar has existed at any time. The retrieval date of the webpage is shown to be 5 November 2021—some four years after the asserted 2017 genesis of the website. The retrieval date is also some 15 months after the priority date of the 924 Application, and some eight months after the Applicant was notified, on 9 March 2021, that the Opponent had filed the Notice of Intention to Oppose in the 924 Opposition.
32. What is notably absent from the Applicant’s evidence is a copy of the website as it appeared around the time of its genesis—as might have been obtained from an internet archive service. Also absent is evidence which supports the assertion that the dickies.com.au domain name was registered by the Applicant (or any other person) in 2017. Consequently, there is insufficient evidence before me to satisfy me that the Applicant registered the domain name dickies.com.au in 2017, nor is the evidence sufficient to satisfy me that a website at the domain name dickies.com.au and which bore the DICKIES Mark was in existence at any time prior to 5 November 2021.
33. Exhibit SF-005 to Fogerty 1 is declared to be ‘a true copy of a printout of the DICKIES Facebook page’. The plain word sign ‘Dickies Bar’ appears on the page, as does a composite sign consisting of those words along with a device. Beneath ‘Dickies Bar’ appears ‘@dickiesbar – Bartending Service’. The exhibit consists of some seven pages and shows a typical Facebook ‘page’ spread across those seven pages. The retrieval date is shown as 5 November 2021. On the third page of the exhibit appears the words ‘Page created – September 29, 2021’. The earliest other date shown is October 27 (without a year indicated). While there are a number of other dates, later than October 27 none of them shows a year. It seems likely from the exhibit that the Facebook page was created on 29 September 2021—some 13 months after the priority date of the 924 Application, and one month after the priority date of the 682 Application.
34. There are five posts only shown on the Facebook page. These are reproduced below:
·‘DICKIES wants you to get the food drinks and bar services you need. Visit us at DICKIES.com.au’
·‘DICKIES is proud to help you find accommodation Visit our partners at is proud to support the LGBTQI+ community! Stay tuned for Mardi Gras 2022 party info, bar services, promotions, accommodation, travel, bookings and more!’
·‘Want to order some Food, Drinks and Catering? How about learning how to cook and some recipes and Mixologist Bartender skills? Then visit and place your orders and get started!’
·‘Are you looking to order drinks to be home or business delivered? Then we can help. You can order online at is nothing before me which satisfies me that the Applicant actually provided any of the services referred to on the Facebook page. Similarly, there is no evidence before me that the Applicant provided any of the services listed on its webpage. It is apparent that the purpose of the Facebook page was to direct customers to the Dickies website or the website where they might find links to other business providing such services. This is consistent with the Applicant’s business model of having ‘affiliate arrangement with many different business, where the Applicant receives payment for referring customers or web traffic to these businesses’, that is ‘pay-per-click advertising’ (as described in Fogarty 1).
36. There are two oppositions under consideration here, each claiming different services. Because of the nature of the Opponent’s submissions, the most convenient approach is to consider separately the Applicant’s submissions and evidence as they relate to each opposition.
The 924 Opposition
37. The Opponent asserted that the Applicant did not have the requisite intention to use (etc) the DICKIES Mark in respect of the 924 Services at the time the Applicant filed the 924 Application. The evidence provided by the Applicant has not rebutted this assertion. Rather, the evidence strongly indicates that the Applicant’s intention was to use the DICKIES Mark in connection with pay per click advertising in relation to services such as those which comprise the 924 Services. I am satisfied that at the filing date of the 924 Application that the Applicant had no intention to use the DICKIES Mark in connection with any of the 924 Services. Consequently, the Opponent has successfully opposed registration of the DICKIES Mark in respect of the 924 Services. The 924 Opposition is therefore successful and need not be considered further.
The 682 Opposition
38. The Opponent asserted that the Applicant did not have the requisite intention to use (etc) the DICKIES Mark in respect of ‘the overwhelming majority’ of the advertising services which appear in the 682 Services, ‘including, in particular, business franchising services and advertising services related to franchising’. The range of services within the 682 Services is very broad. In light of the nature of the Applicant’s business this is ‘indicative of an approach to registration that is not aligned with genuine intention, but rather to a desire to cover a field beyond the range of expected or intended use’ as contemplated in Goodman Fielder.[13] The submissions and evidence provided by the Applicant have satisfied me that it intended to use the DICKIES Mark only in respect of the pay per click advertising which appears as part of the 682 Services. Accordingly, the Opponent has successfully opposed registration of the DICKIES Mark in respect of all of the 682 Services other than pay per click advertising.
[13] (n 12).
Section 60
39. As the Opponent was wholly successful in the 924 Opposition, it is necessary that the s 60 ground of opposition be considered only in respect of 682 Opposition. More specifically, as the Opponent has been successful in the 682 Opposition for all but pay per click advertising it is necessary that this ground be considered only in respect of those services.
40. The Opponent particularised this ground of opposition as follows:
(1) The priority date for the [682 Application] is 6 August 2020 (sic).[14]
(2) The prominent feature in each of the Opponent’s Trade Marks is the word ‘DICKEY’S’.
(3) The words ‘DICKEY’S’ and ‘DICKIES’ are phonetically identical and form the distinctive elements of the Opponent’s Trade Marks and the Opposed Trade Mark.
(4) The Opponent first commenced using the mark ‘DICKEY’S’ in 1941 overseas and is currently offering franchise systems in Australia in relation to the goods and services provided by the Opponent set out in Schedule 1.
(5) The Opposed Trade Mark covers services that are the same as the services covered by the Opponent’s Trade Marks.
(6) The Opponent has acquired a substantial reputation around the world and in Australia in respect of the Opponent’s Trade Marks including prior to the priority date of the Opposed Trade Mark.
(7) Based on the Opponent’s established reputation, [the DICKIES Mark] proposed use in respect of ‘Business advertising services relating to franchising; Business franchising services (group purchasing, group advertising);’ and related advertising and promotional services is therefore likely to deceive or cause confusion.
[14] The correct priority date for the 682 Application is 26 August 2021.
41. Section 60 is reproduced below:
Section 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.
42. As this ground in being considered in respect of the 682 Application, the Opponent must establish that at the filing date of the application—26 August 2021 (‘Relevant Date’)—its trade mark, DICKEY’S (‘DICKEY’S Mark’), had acquired a reputation in Australia amongst a significant number of persons in the relevant market such that use of the DICKIES Mark would be likely to deceive or cause confusion.
43. In McCormick & Co Inc v McCormick, Kenny J considered what is intended by the word ‘reputation’. Her Honour had consulted the Macquarie Dictionary and on the basis of the definition provided decided that, in s 60, reputation is ‘the recognition of the [trade mark] by the public generally’.[15] Her Honour quoted with approval the following words of Lockhart J from Re ConAgra Inc v McCain Foods (Aust) Pty Ltd:
[R]eputation within the jurisdiction may be proved by a variety of means including advertisements on television or radio, or in magazines and newspapers within the forum. It may be established by showing constant travel of people between other countries and the forum and that people within the forum, (whether residents there or persons simply visiting there from other countries) are exposed to the goods of the overseas owner …[16]
[15] [2000] FCA 1335, [81] (Kenny J).
[16] [1992] FCA 159, [118] (Lockhart, Gummow and French JJ).
44. On the subject of reputation Kenny J also referred to the Hugo Boss decision, where the Registrar’s delegate observed:
[I]t is true that the assessment of the reputation of a trade mark goes far beyond mere examination of sales or turnover of goods sold under that trade mark and contemplation of the advertising and promotional figures.
As regards a trade mark, its reputation derives both from the quantum of sales under that mark and also its esteem, or image, projected by that trade mark. The quantum of sales, advertising and promotion contributes to the ‘recognition’ component of the trade mark’s reputation. The credit, image and values projected by a trade mark attaches to the ‘esteem’ component of the reputation as do the public events and other trader’s marks with which [the] owner of the trade marks in question chooses to associate the trade marks via sponsorships, cross-promotions, ‘contra deals’ and so forth.
It follows that a trade mark used in relation to goods with comparatively low sales may have a high and strong reputation by virtue of the high credit or esteem in which it is held, or, conversely, that a trade mark which has very high sales may have a strong reputation notwithstanding the lack of esteem that attaches to it. The particular popular images, or sets of values, that attach to the trade mark are also, therefore, important parts of the reputation of the trade mark and may be as strong an associative force in the minds of the public as the association of the trade marks with the goods or services themselves.[17]
[17] Jackson International Trading Co Kurt D Bruhl GMbH & Co KGv Hugo Boss AG [1999] ATMO 23 (Thompson).
45. Justice Lockhart noted in Re Conagra Inc v McCain Foods (Aust) Pty Ltd (‘Conagra’) that:
It is no longer valid, if it ever was, to speak of a business having goodwill or reputation only where the business is carried on. Modern mass advertising through television (which reaches by satellite every corner of the globe instantaneously), radio, newspapers and magazines, reaches people in many countries of the world. The international mobility of the world population increasingly brings human beings, and therefore potential consumers of goods and services, closer together and engenders an increasing and more instantaneous awareness of international commodities. This is an age of enormous commercial enterprises, some with budgets larger than sovereign states, who advertise their products by sophisticated means involving huge financial outlay. Goods and services are often preceded by their reputation abroad. They may not be physically present in the market of a particular country, but are well known there because of the sophistication of communications which are increasingly less limited by national boundaries, and the frequent travel of residents of many countries for reasons of business, pleasure or study.[18]
[18] [1992] FCA 159, [115].
46. Justice Lockhart’s statement from Conagra, above, was made over 30 years ago, ‘when the World Wide Web was still in its infancy’.[19] ‘With the increased availability of cheaper air travel, the massive expansion of the internet, the popularity of online shopping and social media, it is true with even greater force today’.[20] Further, ‘it is enough that the goods [and/or services] of the foreign trader have a reputation in this country among people present here, whether or not they are Australian residents’.[21] It is to be borne in mind, that in any case, the Opponent ‘must prove that there are a substantial number of persons who are aware of its products’.[22]
[19] In-N-Out Burgers Inc v Hashtag Burgers Pty Ltd [2020] FCA 193, [187] (Katzmann J) (‘In-N-Out Burgers’).
[20] Ibid.
[21] Ibid [188].
[22] Ibid.
47. The Opponent referred to its originating in Texas in 1941 and its subsequent expansion to ‘over 500 Dickey’s Barbecue Pit locations throughout 44 states in the United States’ and its franchise outlets in Brazil, Pakistan, the United Arab Emirates and Egypt. The Opponent submitted:
In the past decade, the Opponent’s restaurants have been visited or seen by millions of people in the United States and elsewhere. The Opponent’s revenues since 2014 have consistently been [very large] and its advertising expenditure in the period between 2013 and 2020 was [also very large]. The Opponent’s Facebook page has more [than] 340,000 followers, its Instagram page more than 22,000 followers, and the videos on its YouTube channel have been viewed more than 320,000 times …
There can be no question that persons in Australia are aware of the Opponent and its restaurants. The United States has long been one of the most popular tourist destinations for Australians, with more than 1 million Australians visiting the United States in 2018–2019. The Opponent has 64 stores located in California alone, a major tourist destination for Australians … In recent years, persons in Australia have visited the Opponent’s website and followed the Opponent’s social media pages, left reviews of the Opponent’s restaurants on travel sites, and posted images of the Opponent’s products in Australia on social media: …
In those circumstances, the inference is inescapable that a ‘not insignificant number’ of Australians who have travelled to the United States have eaten at one or more of the Opponent’s restaurants or at least seen its signs, ‘whether from the skies, on the road, or by passing one of its restaurants’[23] …
Further, there can be no doubt that visitors to Australia from the United States would be well aware of the DICKEY’S brand. Such persons are also relevant to the assessment of the Opponent’s reputation and the prospect of confusion.
In relation to franchising services in particular, the evidence plainly establishes that as the relevant priority date (26 August 2021) persons in Australia were aware of the Opponent and its franchising activities. …
[23] In-N-Out Burgers (n 18) [192].
48. The Opponent relies broadly on three means by which its DICKEY’S Mark has acquired a reputation in Australia. Firstly, by publicity surrounding its move to offer franchise opportunities in Australia. Secondly, by exposure of its DICKEY’S Mark to Australian’s during overseas travel in the United States of America. Thirdly, by its exposure on social media.
49. The Applicant submitted that:
An opponent may establish that it has cultivated a reputation overseas, which has then ‘spilled over’ into Australia. By reason of that reputation, a ‘not insignificant number of persons’ must be caused to wonder whether it might not be the case that the goods/services of the Opponent and the Applicant come from the same source.
Whether a ‘spill over’ reputation exists requires evidence demonstrating the way in which Australian consumers have become aware of the overseas mark. The mere existence of an overseas trade mark, coupled with statistics showing regular travel between that country and Australia, is insufficient because it says nothing of the likelihood or incidence of Australia-US travellers encountering a particular brand or mark. All that travel statistics might show is that:
[S]ome of the persons departing Australia for the United States or departing the United States for Australia, whether for short or long term visits, would be aware of the [the Opponent], but whether it would be a small or large number of the travellers is virtually impossible to assess.[24] …
[24] Conagra (n 17) [510].
50. On balance, the Opponent’s evidence falls short of that required to satisfy me that the DICKEY’S Mark has acquired a reputation amongst a significant number of persons. Both the publicity surrounding the franchising opportunities and the social media exposure seem limited to a relatively small number of persons only—certainly small in comparison to the number of persons that comprise the relevant market. The evidence regarding reputation acquired by exposure to Australians involved in overseas travel also falls short of satisfying me that this has occurred in a significant number of cases. As the Opponent has not established the acquisition of a reputation by the DICKEY’S Mark, this ground of opposition is not established.
Section 42(b)
51. The relevant provisions of s 42 are 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.
52. The onus is on the Opponent to establish that use of the DICKIES Mark would be, rather than could be, contrary to law on the balance of probabilities.[25] The relevant time for assessing whether the use would be contrary to law is at the Relevant Date but ‘looking forward to prospective conduct after registration’.[26]
[25] Advantage Rent-a-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683 (Madgwick J).
[26] Time Warner Entertainment Co LP v Stepsam Investments Pty Ltd [2003] FCA 1502 [42] (Wilcox J).
53. The particulars in the SGP for this ground indicate that the Opponent relied on the same reputation as that relied on for the s 60 ground and that the use of the DICKIES Mark would be contrary to law
as it is likely to constitute misleading and/or deceptive conduct or conduct that is likely to mislead and/or deceive and convey a false and misleading representation contrary to sections 18 and 29(1) of the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth), and amounts to the tort of passing off.
54. In the present matter the Opponent has failed to establish a ground of opposition under s 60. As the test for misleading or deceptive conduct under s 18 of the Australian Consumer Law (‘the ACL’) is a more stringent test than that for deception or confusion under s 60,[27] I am satisfied that the Opponent has also failed to establish that the use of the DICKIES Mark would be contrary to s 18 of the ACL.
[27] See, eg: Ownit Homes Pty Ltd v Ownit Conveyyancing Pty Ltd [2005] ATMO 47, [36] (Williams); Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198 (Gibbs CJ).
55. Where a trade mark does not run afoul of s 18 of the ACL, neither will it run afoul of s 29 of the ACL, nor the tort of passing off. In Pacific Publications Pty Ltd v IPC Media Pty Ltd, Beaumont J considered—in connection with the superseded Trade Practices Act1974 (‘TPA’)—that ‘the Court’s conclusion on s 52 would necessarily carry with it a conclusion on s 53(c) and (d)’.[28] Sections 53(c) and 53(d) of the TPA are the equivalent provisions to ss 29(1)(g) and 29(1)(h) of the ACL. Hill J in Re Equity Access Pty Ltd v Westpac Banking Corporation also addressed the relationship between s 52 of the TPA and passing off. His Honour considered that:
The scope for the operation of s 52 will thus be broader than that involved in the tort of passing off so that in a case such as the present where the claim is for the protection of the reputation in a name against the use of that name by another, failure to succeed under s 52 or s 53 will invariably mean that proceedings for passing off would likewise fail.[29]
[28] [2003] FCA 104, [107] (Beaumont J).
[29] [1989] FCA 506, [40] (Hill J) (citations omitted).
56. For these reasons I am not satisfied that use of the DICKIES Mark would be contrary to law. Therefore, the Opponent has failed to establish this ground of opposition.
Section 62A
57. In the SGP the ground under s 62A was particularised as follows:
(1) The Opponent first commenced using the mark ‘DICKEY’S’ in 1941 overseas and is currently offering franchise systems in Australia in relation to the goods and services provided by the Opponent set out in Schedule 1.
(2) The Opponent has over 500 Dickey’s restaurant locations in the USA and has also franchised into other countries including Brazil, the Islamic Republic of Pakistan, United Arab Emirates and Egypt.
(3) The Opponent has acquired a substantial reputation globally and in Australia in respect of the Opponent’s Trade Marks including prior to the priority date of the Opposed Trade Mark.
(4) The Applicant was aware of the use of the mark ‘DICKEY’S’ by the Opponent at the time the Applicant filed the application for the Opposed Trade Mark.
(5) The Applicant operates a digital media and internet company and is not involved in any businesses providing class 43 services.
(6) The application for the Opposed Trade Mark was therefore made in bad faith.
58. Section 62A is reproduced below:
62A Application made in bad faith
The registration of a trade mark may be opposed on the ground that the application was made in bad faith.
59. The Explanatory Memorandum to the Trade Marks Amendment Bill 2006 (‘Explanatory Memorandum’) provided some non-exhaustive examples of applications made in bad faith:
- persons who monitor new property developments, register the names of new developments as trade marks for a number of services and then threaten the property developers with trade mark infringement proceedings unless the developers licence or buy the trade marks;
- persons who have a history of applying for trade marks that are deliberate misspellings of other registered trade marks;
- persons who identify trade marks used overseas but with no Australian use as yet who then apply to register the trade marks in Australia for the express purpose of selling them to the overseas owners.
60. The case of Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) is a current leading Australian authority on this section of the Act. In that case, Dodds-Streeton J made the following comments:
Clearly the court, when considering bad faith, cannot apply a purely subjective test, called by Lord Hutton ‘the Robin Hood test’. The dishonest person or one with low standards cannot be permitted to obtain trade mark registrations in circumstances where a person abiding by a reasonable standard would not. The registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading. Registration is not provided to help those with low moral standards. …
The words ‘bad faith’ suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[30]
[30] Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81, [24]-[26].
61. Her Honour continued later in the same decision:
The formulation in United Kingdom authority of bad faith as falling short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in a particular area is, in my view, an apt touchstone. An overly literal application may, however, tend to negate the relevance attributed to the applicant’s mental state in the combined test preferred in Harrison.
Further, in my view, mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice, as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand or unconscientious character.[31]
[31] Ibid [165]-[166].
62. It follows from my finding in respect of the ground of opposition under s 59 that this ground need only be considered in respect of the 682 Opposition and the service of pay per click advertising in Class 35.
63. The Opponent submitted:
[O]ne of the accepted categories that will constitute bad faith is engaging in a pattern or practice of registering trade marks for speculative or exploitative reasons in the hope of profiting off the registration at the expense of the true owner.[32]
In this case, there can be no question that the Applicant and Mr Fogarty have such a practice. As noted above, they have registered a wide range of domain names, business names, and trade marks (many of which have subsequently been allowed to lapse) across a diverse variety of subject-matter without any apparent attempt to utilise those marks for anything other than pay-per-click advertising: Rooney Declaration in Reply, Exhibits JR-14, JR-15 and JR-16. Further, a number of those names were undoubtedly registered for opportunistic reasons, as the Applicant’s history of domain name complaints demonstrates: Trethewey Declaration, Exhibits FT-2 and FT-3.
The Applicant’s practice of seeking to register marks at the expense of the true owner is also reflected in its conduct since becoming aware of the Opponent’s intention to oppose the registration of the Opposed Marks, in registering business names and domain names that incorporate the Opponent’s own distinctive DICKEY’S trade mark: Rooney Declaration in Reply at [22]; Trethewey Declaration at [2]. That is unquestionably conduct which falls well short of generally accepted standards of commercial behaviour: see Fry Consulting at [163]. Although that conduct took place after the priority date for the first of the Opposed Marks, it is relevant insofar as it sheds light on the Applicant’s state of mind as at the date of application: see Food Channel Network Pty Ltd v Television Food Network (2010) 86 IPR 437 at [74].
Further, the Applicant’s application for registration of the second of the Opposed Marks was made with full knowledge of the Opponent’s intentions in relation to the use of the DICKEY’S trade mark in Australia, including its attempts to secure an Australian franchisee and engage in franchising operations in Australia: see Rooney Declaration in Chief at [14]-[16]. In those circumstances, the Applicant’s inclusion of business franchising services and associated activities (which the Applicant has never previously shown any interest in or desire to offer) was plainly designed to inhibit the Opponent’s intended use of its mark for such services, in the hope of forcing the Opponent into some sort of payment or commercial settlement. On no view can that be characterised as anything other than conduct in bad faith.
[32] The Opponent cited the Explanatory Memorandum; Home Box Office Inc v Florenca (2010) 90 IPR 164, [22]–[24]; Marvel Characters Inc v Charles [2011] ATMO 92, [24]; The Coca-Cola Company v Teavolution Pty Ltd [2017] ATMO 126 at [42].
64. The Applicant submitted in response that it ‘did not know of the Opponent at the time it decided to apply for the Opposed Marks’. This is clearly not so in the case of the filing of the 682 Application as the Applicant was given notice that the Opponent had filed a Notice of Intention to Oppose registration of the 924 Mark on 9 March 2021 which was some five months before the Applicant filed the 682 Application on 26 August 2021. Further, the Applicant received a copy of the SGP in the 924 Opposition and filed a Notice of Intention to Defend that opposition, all prior to filing the 682 Application.
65. Nevertheless, what might be considered to be an application made in bad faith in respect of some goods or services does not necessarily taint an entire application. Therefore, it is important to bear in mind that what is being considered at this point is only whether the 682 Application was made in bad faith in respect of pay per click advertising. I note that I make no finding regarding bad faith in respect of the balance of the 682 Services. The Applicant relevantly submitted that the 682 Application concerns ‘services that do not resemble the Opponent’s Texas-style barbecue restaurant franchise business’. It is apparent that pay per click advertising is a very different service to the services provided by the Opponent. Because of that difference in the nature of the respective services, I am not satisfied that 682 Application was made in bad faith as far as pay per click advertising is concerned. The Opponent has, therefore, not established this ground of opposition in respect of those services.
Amendment of specification of 682 Application
66. I indicated my finding in respect of the 682 Application to the Applicant prior to issuing this decision and offered the Applicant the opportunity to amend the 682 Services. The Applicant requested that the 682 Services be amended to delete all but pay per click advertising from the specification. The specification was so amended. Consequently, my decision in respect of the 682 Application as amended, is that the DICKIES trade mark, the subject of that application, may proceed to registration.
Decision and Costs
67. Section 55 relevantly provides:
(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.
924 Opposition
68. I have found that the Opponent was successful in the 924 Opposition for all of the 924 Services. Accordingly, I refuse to register the DICKIES Mark, the subject of the 924 Application.
69. The Opponent 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 Opponent established a ground of opposition, I award costs in the 924 Opposition against the Applicant under s 221 in line with the amounts in Schedule 8 of the Trade Mark Regulations 1995 (Cth).
682 Application
70. I have found that the Opponent was successful in the 682 Application for all of the 682 Services other than pay per click advertising. As the Applicant amended the specification accordingly, the DICKIES Mark, the subject of the 682 Application may proceed to registration after one month from the date of this decision, with the specification so amended. 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.
71. Both parties requested an award of costs in their favour. As each had a measure of success, I decline to make an award of costs against either party in respect of the 682 Opposition.
Robert Wilson
Hearing Officer
Delegate of the Registrar of Trade Marks
18 April 2024Annexure
682 Services
Class 35: Advertisement hoarding rental; Advertising; Advertising agencies; Advertising agency services; Advertising analysis; Advertising by mail order; Advertising services provided by television; Advertising services provided over the internet; Advertising services provided via a data base; Advisory services relating to advertising; Arranging exhibitions for advertising purposes; Billboard advertising; Business advertising services relating to franchising; Business advice relating to advertising; Business consultation relating to advertising; Business franchising services (group purchasing, group advertising); Cinematographic film advertising; Classified advertising; Collection of information relating to advertising; Commissioned writing services for advertising purposes; Compilation of advertisements for use as web pages on the internet; Compiling indexes of information for commercial or advertising purposes; Conducting exhibitions for advertising purposes; Consultancy regarding advertising communications strategies; Consultancy relating to advertising; Demonstration of goods for advertising purposes; Development of advertising concepts; Development of advertising plans; Direct mail advertising; Direct market advertising; Direct-mail advertising; Dissemination of advertising material; Dissemination of advertising matter; Distribution of advertising material; Distribution of goods for advertising purposes; Electronic advertising services; Employment advertising services; Fashion show services (advertising or promotional services); Graphic advertising services; Hire of advertising aids; Hire of advertising billboards; Hire of advertising equipment; Hire of advertising materials; Hiring of advertising materials; Information services relating to advertising; Layout services for advertising purposes; Market research for advertising; Modelling for advertising or sales promotion; Online advertising on a computer network; Organisation of exhibitions for commercial or advertising purposes; Organisation of exhibitions or trade fairs for commercial or advertising purposes being event management services; Organisation of housing and real estate displays and exhibitions for promotion or advertising purposes; Organisation of trade expositions or shows for commercial or advertising purposes; Organising of prize draws for advertising purposes; Outdoor advertising; Outdoor advertising services; Pay per click advertising; Personnel recruitment advertising; Placing advertisements (for others); Placing of advertisements; Planning services for advertising; Preparation of advertisements; Preparation of advertising material; Preparing of advertisements; Press advertising consultancy; Press advertising services; Production of advertising films; Production of advertising material; Production of fashion shows for advertising or promotional purposes; Production of home shopping programmes (production of advertisements and commercials); Production of radio advertisements; Production of radio television and cinema advertisements; Production of sound recordings for advertising purposes; Production of video recordings for advertising purposes; Production of visual advertising matter; Production, organisation and presentation of fashion shows for advertising or promotional purposes; Promotion (advertising) of business; Promotion (advertising) of concerts; Rental of advertising time on communication media; Rental of advertising space on the internet; Rental of advertising space; Rental of advertising matter; Rental of advertising materials; Rental of advertising apparatus; Recruitment advertising; Radio advertising; Provision of information relating to advertising; Provision of advertising space; Provision of advertising information; Providing user reviews for commercial or advertising purposes; Providing user ratings for commercial or advertising purposes; Providing user rankings for commercial or advertising purposes; Providing information, including online, about advertising, business management and administration and office functions; Promotional advertising services; Promotion (advertising) of travel; Writing advertising copy; Web indexing for commercial or advertising purposes; Videotape film production for advertising films; Updating of advertising material; Television advertising; Scriptwriting for advertising purposes; Response advertising; Research services relating to advertising; Rental of billboards (advertising boards)
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