Dimokranitis v Exotic Limo Pty Ltd

[2010] ATMO 69

TRADE MARKS ACT 1995

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

Re:Opposition by Theo Dimokranitis to registration of trade mark application 1148162 (39) - EXOTIC LIMO - filed in the name of Exotic Limo Pty Ltd.

Delegate:	Bianca Irgang
Representation:	Opponent: Ms Siobhan Ryan of Counsel, instructed by Griffith Hack Applicant: Mr Ben Gardiner of Counsel, instructed by Kliger Partners
Decision:	2010 ATMO 69 s.52 opposition: sections 42(b), 44 and 60 pressed – s 44 ground of opposition not established since trade marks are not substantially identical or deceptively similar - s 60 ground of opposition not established for any services – opponent does not have sufficient reputation in Australia – s 42(b) ground of opposition not established – evidence insufficient - Costs awarded against the opponent.

Background

1. Exotic Limo Pty Ltd (‘the applicant’), filed application number 1148162 on 23 November 2006 in class 39 of the International Classification of Goods and Services (‘Nice’ classification). Current details of the application are set out below.

   Trade mark:  

   Trade mark application:      1148162

   Filing Date:  23 November 2006

   Specification:  Class 39: Booking agency services for car hire; car hire services; chauffeur driven car hire services

2. Theo Dimokranitis (‘the opponent’) filed a Notice of Opposition (‘the Notice’) to the registration of the application filed 3 July 2007. Thereafter the parties served and filed evidence in accord with the provisions of the Trade Mark Regulations 1995 (‘the Regulations’).

3. I heard the matter in Melbourne as a delegate of the Registrar of Trade Marks on 13 April 2010. The opponent was represented by Ms Siobhan Ryan of Counsel instructed by Griffith Hack. The applicant was represented by Mr Ben Gardiner of Counsel instructed by Kliger Partners.

   Grounds of Opposition

4. The Notice nominated most of the grounds of opposition under the Trade Marks Act 1995 (‘the Act’).  However, only those grounds under sections 42, 44 and 60 were pursued at the hearing. As a formal matter, I note the remaining grounds listed in the Notice have not been established.

5. The onus is upon the opponent to establish one or more of its grounds of opposition. Gyles J has referred to the standard of proof required in terms of a ‘balance of probabilities’.[1] His findings upon that issue, arrived at after a consideration of the relevant authorities, have been discussed with approval by Sundberg J in Chocolaterie Guylian NV v Registrar of Trade Marks[2].

   [1] Pfizer Products Inc v Karam [2006] FCA 1663; (2006) 70 IPR 599;

   [2] [2009] FCA 891, para 22-27

   Evidence

6. The evidence of the parties consists of the following declarations:

Declarant	Position	Date Made	Exhibits
Evidence in Support
Theo Dimokranitis[3]	Owner of Exoticar	2 July 2008	1 to 14
Pascal Dimokranitis	Co-owner of Artline Studios	21 August 2008	-
Julie Minniti	Customer of Exoticar	27 August 2008	-
Anne Makrigiorgos	Trade Mark Attorney of Griffith Hack	30 October 2008	A
Evidence in Answer
Paul Caminiti	Director of Exotic Limo Pty Ltd	27 February 2009	PC-1 to PC-16
Evidence in Reply
Theo Dimokranitis[4]	Owner of Exoticar	10 September 2009	A to G

[3] For ease of reference throughout this decision I will refer to this declaration as Dimokranitis #1.

[4] For ease of reference throughout this decision I will refer to this declaration as Dimokranitis #2

Opponent’s Evidence

1. The opponent’s evidence demonstrates that the opponent owns a car hire business whose customers hire vehicles for weddings, tours, sight seeing, debutante balls, formals and special occasions. The opponent obtained registration of trade mark 1125223 in 2006. The details of this registration are as follows:

   Trade mark:  

   Trade mark registration:     1125223

   Filing Date:  21 July 2006

   Owner:  Theo Dimokranitis

   Specification:  Class 39: Car hire and car rental services, including services associated with the hire of chauffeur driven convertibles, sedans and limousines

2. In Dimokranitis #1 it is stated that the opponent has been using the above trade mark and the plain word EXOTICAR (which has not been registered) on its car hire services since the opponent commenced its business in 2002. Mr Theo Dimokranitis states that he purchased the first vehicle for the Exoticar fleet in June of 2002. He goes on to state that June 2002 was when he first exhibited the car and the Exoticar car hire business at the Melbourne Bride, Bridal Fair held at the Melbourne Exhibition building. Since 2002 the size of the opponent’s car fleet increased to 12 vehicles and includes luxury sedans and convertibles built to manufacturers’ specifications. While the opponent does not presently offer any ‘stretched’ vehicles for hire, it has plans to ‘stretch’ a new 2010 model Mercedes E-class car.

3. The opponent has provided some figures relating to advertising expenditure and, whilst these appear relatively slight, Mr Theo Demokranitis has stated that the opponent has sought to popularize its Exoticar services by advertising in a number of wedding magazines and at wedding fairs: specifically, The Complete Wedding Guide and Australian Bridal Service Fair.

4. A number of advertising examples have been provided in the annexures accompanying Dimokranitis #1. Dimokranitis #1 states when and in which publications these advertisements were used.

5. Dimokranitis #1 states that the opponent established a website to promote the Exoticar business in 2002. Print-outs from the opponent’s Exoticar website have been provided in annexure 1 of the declaration. According to the dates on the print-outs the format and/or design appears to have only been in operation since 2008. However, Mr Theo Dimokranitis asserts that the design and information contained in the present web page hard copy is much the same as the old website which was established in 2002. In any event, the print-outs can only demonstrate the use of the opponent’s registered trade mark on its present website.

6. The opponent’s evidence also contains the statutory declaration of Ms Julie Minniti (‘the Minniti declaration’). The Minniti declaration describes a confusion between the opponent and applicant which took place at the Australian Bridal Service Fair at the Melbourne Exhibition Building in August, 2007. Ms Minniti states that she went to the Bridal fair to source hire cars and witnessed a number of such vehicles at the entrance of the fair belonging to Exotic Limo. Ms Minniti then proceeded further into the fair and came upon another exhibitor with vehicles for hire under the name Exotic Car. Ms Minniti asserts that she became confused by the names of the respective exhibitors and believed that Exotic Car (the opponent) was also the owner of the Exotic Limo vehicles.

7. The statutory declaration of Pascal Dimokranitis and Dimokranitis #2 allege that there have been further instances of confusion between the trade marks owned by the applicant and the opponent. Mr Pascal Dimokranitis has declared that since January 2007, the opponent has received an average of 10 telephone calls per week expressing confusion between Exoticar and ExoticLimo. There is limited documentation to support these statements.

   Applicant’s Evidence

8. The statutory declaration of Mr Paul Caminiti (‘the Caminiti declaration’) states that the applicant adopted the business name ExoticLimo in Victoria in 2005. On 23 November 2006 the applicant applied for the opposed trade mark. In January 2007 the applicant changed its company name to ExoticLimo. The applicant is also in the car hire business although the vehicles that it offers for hire are different from those offered by the opponent.

9. The Caminiti declaration states that the applicant’s hire vehicles are well-known luxury makes focusing on top-of-the-range models which have been further customized by stretching the vehicles to take more passengers than the manufacturer’s factory version. Mr Caminiti avers that the ‘stretching’ of these vehicles is carried out by another company he has an interest in called Presidential Coach Builders Ltd which is based in Los Angeles, USA.

10. Mr Caminiti states that the applicant selected the trade mark EXOTICLIMO for the laudatory connotations associated with the words ‘exotic’ and ‘limo’. Mr Caminiti stated that he considered the word ‘exotic’ to be ‘a word commonly applied to unusual or luxury cars in the car hire industry, or generally in the segment of car industry that makes or sells cars that are expensive, powerful, luxurious and as a result of those factors, unusual’. Mr Caminiti asserted that ‘exotic’ described everything that the mass car market was not but that ‘exotic’ accurately described the nature of the cars the applicant had for hire.

11. The use of the word ‘limo’ to follow the word ‘exotic’ was selected for similar reasons. Mr Caminiti stated that the word ‘limo’ means a stretched luxury car to many of the applicant’s customers. The use of the word ‘limo’ was also consistent with the use of the word ‘limousine’ as part of the applicant’s former name as registered with ASIC.

12. The Caminiti declaration outlines the applicant’s expenditure on marketing and advertising based on the applicant’s financial records for the financial years beginning in 2005 and continuing until 2008. This expenditure is comparable to the advertising expenditure of the opponent. I also note that the total revenue generated over the same time period by its hire car services under the EXOTICLIMO trade mark is reasonable.

13. The applicant’s evidence demonstrates the applicant uses its EXOTICLIMO trade mark on its website and on its advertisements in magazines and at wedding fairs. Interestingly, the applicant’s evidence provides clearly dated examples of the respective advertisements of both parties in magazines such as Melbourne Wedding & Bride and Melbourne Complete Wedding[5].

    [5] Exhibits 10 and 11 of the Caminiti declaration.

    Discussion

    Section 44 - Identical etc. trade marks:

14. Section 44 of the Act relevantly provides:

    44Identical etc. trade marks

    (2)  Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:

    (a)  it is substantially identical with, or deceptively similar to:

    (i)  a trade mark registered by another person in respect of similar services or closely related goods; or

    (ii)  a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and

    (b)  the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.

15. To establish its opposition in terms of section 44 of the Act the opponent must show all of the following:

    Ø  a trade mark (or trade marks), either registered or pending registration, in the name of a person other than the present applicant, and in relation to which the opposed trade mark is either substantially identical or deceptively similar;

    Ø  the trade mark(s) in the name of the other person must be in respect of similar services or closely related goods; and

    Ø  the priority date(s) of the other person’s trade mark(s) is (are) the earlier.

16. The opponent is the registered owner of trade mark number 1125223 which has an earlier priority date to that of the opposed trade mark.  The opposed trade mark application covers the same services in class 39 to those that relate to the opponent’s trade mark. The remaining issue for me to determine is whether the opposed trade mark is either substantially identical or deceptively similar to the opponent’s previously registered trade mark.

17. It is obvious EXOTICLIMO is not substantially identical to the opponent’s trade mark EXOTICAR EURO LUXURY HIRE according to the side-by side test set out by Windeyer J. in Shell Co. (Aust) Ltd v Esso Standard Oil (Aust) Ltd[6]. The opponent’s trade mark includes additional and different words which act as clear visual and verbal differences from the opposed trade mark.

    [6] (1963) 109 CLR 407 at 414

18. Deceptive similarity is defined by section 10 of the Act. The determination of deceptive similarity requires a comparison of the impression persons of ordinary intelligence and memory would have, in recalling the opponent’s trade mark, to the impression they would get from the opposed trade mark.[7] The probability of deception must be finite and non-trivial.[8]

    [7] The Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1961) 109 CLR 407, per Windeyer J at 415

    [8] Registrar of Trade Marks v Woolworths Limited 45 IPR 411, per French J at [43]

19. The opponent’s trade mark combines the words EXOTIC and CAR by using the letter ‘C’ at the end of EXOTIC to join the two words into the trade mark EXOTICAR. The opposed trade mark is EXOTICLIMO which is clearly the joining of the words EXOTIC and LIMO. A comparison of the two trade marks shows that the common element between them is the word EXOTIC.

20. The opponent has argued that the word EXOTIC is an unusual term when applied to car hire services. Ms Ryan, Counsel for the opponent, states it is likely that consumers would become deceived between the two trade marks due to this common element. This is particularly due to the similar meanings which may be attributed to the terms CAR and LIMO respectively. However, I am not persuaded by this reasoning.

21. The opponent’s registered trade mark consists of four distinct elements which have been arranged with the term EXOTICAR in a slightly larger font above the top of the words EURO LUXURY HIRE. There are no graphic devices in the trade mark but the spacing of the different components and overall ‘look’ of the trade mark is very different to the opposed trade mark. The opposed trade mark contains only the single term EXOTICLIMO which has been rendered in such a way that a panoramic image of a city skyline is superimposed across the font.

22. I am satisfied that the opponent’s trade mark EXOTICAR which includes the words EURO LUXERY HIRE is likely to be remembered by a party who has been exposed to the trade mark. Similarly, the opposed trade mark includes a strong and memorable graphic element which I am satisfied adds enough to the trade mark so that it is more than the simple expression EXOTICLIMO.

23. I am not satisfied that the opposed trade mark and the opponent’s trade mark would be recognized or remembered by the average Australian customer solely by the term EXOTIC. Nor am I satisfied that the ‘idea’ of the trade marks is so similar that consumers are likely to become confused between them on this basis. I am not satisfied that there is a real tangible danger of confusion between these two trade marks. I do not consider that the two trade marks are deceptively similar. For these reasons, I find that the ground of opposition under the provisions of section 44 has not been established.

Section 60 - Trade mark similar to trade mark that has acquired a reputation in Australia

1. Section 60 of the Act provides:

   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.

2. To establish the ground of opposition under section 60, the opponent must demonstrate:

   ØThat, at the priority date of the opposed application, another trade mark had acquired a reputation in Australia; and

   ØThat because of the reputation of the second trade mark, use of the applicant’s trade mark would be likely to deceive or cause confusion.

3. There is no longer a requirement that there be any specific level of similarity between the trade marks in question, nor is there a requirement that the goods and/or services of either party share a nexus of similarity. The matters which the opponent must establish are that there existed, at the application priority date, another trade mark which had acquired a reputation in Australia, and that the reputation was such that the applicant’s use of its trade mark would be likely to deceive or cause confusion.

4. In McCormick & Co Inc v McCormick (2000) 51 IPR 102 Kenny J referred to what is meant by the word “reputation” in the following way:

   [81] What is intended by the word “reputation” in s 60? The word is defined in The Macquarie Dictionary as follows:

   reputation … 1. the estimation in which a person or thing is held, esp. by the community or the public generally; repute … 2. favourable repute; good name … 3. A favourable and publicly recognised name or standing for merit, achievement, etc … 4. The estimation or name of being, having done, etc, something specified.

   Compare The Oxford English Dictionary. In s 60, the word is, I think, apt to refer to “the recognition of the McCormick & Co marks by the public generally”.

   [82] Does the evidence establish that in Australia before 9 March 1992 the McCormick & Co marks were recognised by the public generally and, because of that, the use by Mary McCormick of her marks would be likely to cause the public confusion, as for example, by the public's mistakenly attributing a business connection between the two or attributing her product to the company?

5. I turn now to the evidence put forward by the opponent. It is clear from this evidence that the opponent has used its EXOTICAR trade mark before the priority date of the opposed mark. The opponent asserts that it first commenced using its EXOTICAR mark in 2002. Mr Dimokranitis has stated that the opponent has advertised its car hire business under its EXOTICAR mark in many prominent magazines and at popular bridal fairs. However, it is up to the opponent to demonstrate that a reputation existed in Australia before the priority date of the opposed trade mark. Moreover, they must also show that the use of the opposed trade marks would be likely to deceive or cause confusion. More than merely indicating prior use, the opponent’s trade mark needs to be “associated in the minds of the Australian public”[9].

   [9] Seven Up Co v OT Ltd (1947) 75 CLR 203 at 211

6. To this end, much of the evidence filed by the opponent is of limited worth in determining the extent of the reputation of the opponent’s “EXOTICAR” trade mark at the relevant date. In an opposition proceeding it is for the opponent to establish its case. Any assertions of an Australian reputation would need evidence to support the assertion that it had penetrated the consciousness of prospective Australian consumers in some tangible manner before I would be willing to accept the proposition.

7. Dimokranitis #1 and #2 provide limited advertising examples of the opponent’s trade mark. Many of these advertisements also post date the priority date of the opposed application. The evidence certainly demonstrates that an internet domain name was registered on 30 May 2002 (Annexure C accompanying Dimokranitis #2) and that the opponent registered the business names “Exoticar Hire” and “Exoticar Euro Luxury Hire” from at least 2001/2002 (Annexure G accompanying Dimokranitis #2). However, these limited advertisements even with the business name registrations and domain name registrations are not enough to demonstrate that the opponent had a sufficient reputation as of 23 November 2006 within Australia, such that the use of the applicant’s trade mark would be likely to cause deception or confusion.

8. The opponent has not established the requisite level of reputation before 23 November 2006 – its evidence is simply not sufficient for this purpose. Whilst there is sufficient information to demonstrate that the opponent has a growing reputation in its EXOTICAR trade mark, reputation which post-dates the priority date of the opposed application is not relevant for the purposes of section 60.

1. I note that Dimokranitis #1 and #2 as well as the statutory declaration of Mr Pascal Dimokranitis outline instances of confusion which have taken place between the opponent and the applicant. It is asserted that the EXOTIC element found in each of the respective marks has been the source of confusion for consumers in the marketplace. The Dimokranitis declarations attest to at least 10 instances of confusion taking place per week by customers who have confused the two businesses. However, by mid 2008 the number of confused telephone calls had dropped to between two to three calls per week. There is nothing other than the comments within the declarations to support these claims. Therefore, I am not prepared to give them any significant weight in this matter.

2. The Minniti declaration and Annexure B of Dimokranitis #2 are another matter entirely. These instances of confusion appear to have been made by two of the opponent’s customers who have provided their comments in writing for inclusion in the opponent’s evidence. In the Minniti declaration, Ms Minniti avers that she was confused between EXOTIC CAR and EXOTICLIMO. I also note that the email from Ms Karen Hassett (Annexure B accompanying Dimokranitis #2) asserts that she could not remember the exact name of the car company that she saw at the Melbourne Bridal Expo in February of 2009 but that she was ‘quite certain it was Exotic something’. As a consequence, she contacted the applicant’s EXOTICLIMO business in error and was redirected to the opponent, Exoticar. I believe that these documented instances of confusion require some comment.

3. Both parties have conceded that the words ‘LIMO’ and ‘CAR’ are not particularly distinctive when it comes to the car hire services they offer. However, the opponent has argued that the word EXOTIC is unusual and distinctive when applied to car hire services. I note that the applicant has argued the opposite - that EXOTIC is not a distinctive term within the car hire industry. The applicant has provided a number of print outs from Google® searches to demonstrate that other traders use the word EXOTIC to describe their cars and car hire services.  

4. The Macquarie Dictionary[10] defines the word EXOTIC as:

   1. of foreign origin or character; not native; introduced from abroad, but not fully naturalised or acclimatised.
   2. strikingly unusual or colourful in appearance or effect; strange; exciting.
   3. Physics (of an atom) with an electron or electrons replaced by other negatively charged particles, as muons, antiprotons, etc.
   

   [10] Online 2010 Ed.

   4. anything exotic, as a plant.

5. Given these definitions, I am not convinced that EXOTIC is a particularly striking or inventive term when applied to car hire services. While the word EXOTIC is not directly descriptive of the services offered by the parties, I am satisfied it does describe a characteristic of the vehicles the parties are making available for hire. The word EXOTIC is likely to indicate to customers that the vehicles offered for hire are possibly of foreign origin, strikingly unusual, strange or exciting. In this context, I am not satisfied that EXOTIC is a striking and particularly unusual term within the industry.

6. In respect of the likelihood of the applicant’s trade mark use resulting in confusion, I consider the comments by Stephen J in Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited[11] to be particularly apt.  His Honour said:-

   There is a price to be paid for the advantages flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public. In cases of passing off, where it is the wrongful appropriation of the reputation of another or that of his goods that is in question, a plaintiff which uses descriptive words in its trade name will find that quite small difference in a competitor's trade name will render the latter immune from action (Office Cleaning Services Ltd. v. Westminster Window and General Cleaners Ltd. (1946)63 RPC 39, at p 42, per Lord Simonds). As his Lordship said (1946) 63 RPC, at p 43, the possibility of blunders by members of the public will always be present when names consist of descriptive words - `So long as descriptive words are used by two traders as part of their respective trade names, it is possible that some members of the public will be confused whatever the differentiating words may be.' The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe. … Given that a name is no more than merely descriptive of a particular type of business, its use by others who carry on that same type of business does not deceive or mislead as to the nature of the business described.

   [11] [1978] HCA 11; (1978) 140 CLR 216 at 229-230

7. Given that both parties have had significant use of their trade marks within the same market in Australia, and given that the instances of apparent confusion between the trade marks have been decreasing, I am not satisfied that the applicant’s use of its EXOTICLIMO trade mark will result in any significant degree of deception and confusion. If there is to be confusion resulting from the applicant’s use, I am satisfied that it is more likely to result from the descriptiveness of the trade marks themselves than from any reputation the opponent may have in its trade mark.

8. Taking into account the overall level of reputation of the opponent’s trade mark documented in its evidence and balanced with the various factors affecting the likelihood of confusion, I find that on the balance of probabilities, the danger of confusion between the two trade marks is not a real and tangible one. The demonstrated reputation of the opponent’s trade mark is insufficient, when taking into consideration the factors affecting the likelihood of confusion in the marketplace, to create a situation of that order.

9. Accordingly, I find that the ground of opposition under section 60 has not been established.

   Section 42(b) - Contrary to Law

10. The ground based on subsection 42(b) is indicated in the Notice as “The use of the [opposed trade mark] would be contrary to the law”, echoing the words of subsection 42(b) which simply state “An application for the registration of a trade mark must be rejected if its use would be contrary to law.”

11. At the hearing Ms Ryan submitted use of the opposed trade marks would be contrary to law because it would offend against sections 52 and 53 of the Trade Practices Act 1974 (“the TPA”). I cannot agree with this submission. I have already found that the use of the opposed trade mark is not going to cause deception or confusion in terms of section 60 of the Act since I am not satisfied the opponent has established sufficient reputation in its mark in Australia. There are several decided cases confirming that more is required to establish a likelihood of misleading or deceptive conduct, (or by extension conduct amounting to the making of false representations), than is the case with trade marks likely to deceive or cause confusion under sections 44 or 60. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd[12], by way of example, Gibbs, CJ noted (at 688):

    In McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 33 ALR 394 it was rightly held by Smithers J and by Fisher J that to prove a breach of s 52 it is not enough to establish that the conduct complained of was confusing or caused people to wonder whether two products may have come from the same source, and that Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592; 1A IPR 465, a decision on the Trade Marks Act 1905 (Cth) as amended, is distinguishable.

    [12] (1982) 1a IPR 684

12. As I have found that the use of the opposed trade marks is not, at a minimum, likely to “confuse”, it follows that use is not, on the stricter test posited by the TPA, likely to mislead or deceive, nor do I believe use would amount to a false representation in terms of section 53 of the TPA. Thus, I find that the opponent has not established its ground under section 42.

    Decision

13. Section 55 of the Act provides:

    Decision

    55. 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.

14. The opponent has not established its opposition to the registration of application 1148162.

15. The trade mark application may proceed to registration 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 the appeal has been decided or discontinued.

    Costs

16. Both parties made a claim for costs. As there is nothing before me suggesting that costs should not follow the general rule, I award costs against the opponent in accordance with Schedule 8 of the Trade Mark Regulations 1995.

    Bianca Irgang
    Hearing Officer
    Trade Marks Hearings
    29 July 2010