Education Planet Pty Ltd v Education Planet Global Pty Ltd

[2022] ATMO 206

TRADE MARKS ACT 1995

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

Re:Opposition by Education Planet Pty Ltd to registration of trade mark application number 2026778 (41, 45) – E-PLANET EDUCATION PLANET and device – in the name of Education Planet Global Pty Ltd

Delegate:

Louise Tuohy

Representation:

Opponent: Martin Earley of Baxter Patent Attorneys Pty Ltd

Applicant: Andrew Sykes of counsel

Decision:

2022 ATMO 206

Trade Marks Act 1995 (Cth) – opposition under section 52 – sections 43, 58, 60 and 62A – none established – trade mark to proceed to registration

Background

1. This matter concerns an opposition by Education Planet Pty Ltd (‘Opponent’) under s 52 of the Trade Marks Act 1995 (Cth) (‘Act’) to the registration of the following trade mark application in the name of Education Planet Global Pty Ltd (‘Applicant’):

   Application Number:  2026778

   Trade Mark:  (‘Trade Mark’)

   Filing Date:  31 July 2019

   Specification:  Class 41: Career counselling (education or training advice); Career information and advisory services (educational and training advice); Consultancy services relating to education; Education information; Educational advisory services; Educational consultancy services; Information relating to education

   Class 45: Migration agent services (immigration and immigrant services) (‘Services’)

2. The Trade Mark application (‘Application’) was examined as required by s 31 of the Act and advertised as accepted for possible registration on 12 February 2020.

3. The Opponent filed a Notice of Intention to Oppose the registration on 6 April 2020, followed by its Statement of Grounds and Particulars (‘SGP’) on 1 May 2020.[1] The Applicant filed its Notice of Intention to Defend on 10 September 2020.

   [1] An amendment to the SGP was permitted which delayed the deadline for filing the Notice of Intention to Defend.

4. Thereafter the Opponent and Applicant filed evidence in accordance with the provisions of the Trade Marks Regulations 1995 (Cth) (‘Regulations’).

5. Once time for filing evidence had ended both parties requested to be heard. As a delegate of the Registrar of Trade Marks, I heard the matter on 7 November 2022. The Opponent requested to be heard by way of written submissions. The Applicant attended the hearing by way of video conference. The Opponent’s representative, Martin Earley of Baxter Patent Attorneys Pty Ltd, filed written submissions prior to the hearing. The Applicant was represented by Andrew Sykes of counsel, instructed by Rohan Wallace and Sunni Wentzel of Golja Haines and Friend. The Applicant’s oral submissions were supported by written submissions filed prior to the hearing.

Evidence

Evidence in Support

·     Declaration of Hari Prasad Sapkota, Director of the Opponent, made on 10 December 2020, with Exhibits HPS-1 to HPS-12 (‘Sapkota 1’). Exhibit HPS-6 includes the following declarations:

Ø  Declaration of Rohit Khadka, Business Development Manager of Salisbury College, made on 8 December 2020.

Ø  Declaration of Prakask Kharel, Marketing Coordinator of Kingsford International Institute, made on 8 December 2020.

Ø  Declaration of Suraj Shrestha, Business Development Manager of International College of Australia Pty Ltd, made on 8 December 2020.

Ø  Declaration of Madan Koirala, Management Accountant of Australian Harbour International College, made on 9 December 2020.

Ø  Declaration of Prajapati Siwakoti, Marketing Manager of Australian National Education Pty Ltd, made on 9 December 2020.

Ø  Declaration of Dikshyant Mahto, Marketing Manager of Sydney City College of Management Pty Ltd, made on 9 December 2020.

Ø  Declaration of Bivek Chhetri, Education Counsellor, made on 10 December 2020.

Ø  Declaration of Suman Kharel, Overseas Student Health Cover agent, made on 10 December 2020.

(collectively ‘Industry declarations’)

Evidence in Answer

·     Declaration of Moha Lal Lamichhane (also known as Nayan Lamichhane), Director of the Applicant, made on 14 March 2021, with Exhibits ML-1 to ML-26 (‘Lamichhane declaration’).

·     Declaration of Suneetha Wentzel, Trade Mark Attorney of Golja Haines & Friend for the Applicant, made on 15 March 2021, with Exhibits SW-1 to SW-2.

Evidence in Reply

·     Declaration of Hari Prasad Sapkota, made on 23 December, with Exhibits EIR-HPS-1 to EIR-HPS-03 (‘Sapkota 2’).

Grounds of Opposition and Onus

1. In the SGP the Opponent nominated grounds under ss 43, 58, 60 and 62A of the Act.

2. The Opponent bears the onus of establishing at least one of the grounds of opposition.0F[2] The standard of proof is the ordinary civil standard of the balance of probabilities.1F[3]

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

   [3] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

Section 58

1. Section 58 provides:

   58  Applicant not owner of trade mark

   The registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark.

2. In the SGP the Opponent particularised the ground of opposition under s 58 as follows:

   The Opponent, Education Planet Pty Ltd, started a business in the fields of education agency and international student recruitments in Australia in 2015. Since the establishment of the business, the Opponent has adopted a word trade mark "E- PLANET" and a logo mark, being , which is identical to the representation of the Trade Mark being opposed and has been continuously using those trade marks in connection with education advisory services, career counselling services, and services related to applications of student visa till the present. The services provided by the Opponent are similar and related to the services as claimed in the Application. The first use of the Trade Mark, in respect of the relevant services, made by the Opponent predates the priority date of the Application, i.e. 31 July 2019. As such, the Applicant is not the owner of the Trade Mark.

3. The concept of trade mark ownership was considered in Anchorage Capital Partners Pty Limited v ACPA Pty Ltd wherein the Full Federal Court stated:

   [O]wnership may be acquired by the act of applying for registration of a trade mark even though the applicant has not previously used the mark and the mark has already been used outside Australia by someone else. However, the applicant’s claim to ownership of the mark may be defeated if another person has previously used the mark, or a substantially identical mark, in Australia as a trade mark in relation to the same goods or services, or goods or services of the same kind, as those that are the subject of the application for registration. [4]

   [4] [2018] FCAFC 6, [49] (Nicholas, Yates and Beach JJ).

4. The default position is that an Applicant is prima facie considered to be the owner of the Trade Mark by virtue of the Applicant’s filing of the application for the Trade Mark.[5] Therefore it is the Opponent who bears the evidential onus of establishing that the Applicant was not the owner of the Trade Mark. In order to succeed under this ground of opposition the Opponent must show the trade marks it relies on are substantially identical to the Trade Mark,[6] and the Opponent’s services are the ‘same kind of thing’ as the Services,[7] and a person other than the Applicant has the earlier claim to ownership based on use in Australia of the trade marks relied upon by the Opponent prior to whichever is earlier of: (a) the application to register or (b) any actual use of the Trade Mark in Australia by the Applicant.[8]

   [5] See, eg, Aston v Harlee Manufacturing Co [1960] HCA 47, [21] (Fullagar J). The act of filing an application gives rise to a presumption that the applicant intends to use the trade mark in respect of all goods and/or services claimed.

   [6] Carnival Cruise Lines Inc. v Sitmar Cruises Limited [1994] FCA 68, [62] (Gummow J).

   [7] Re Hicks’ Trade Mark (1897) 22 VLR 636, 640 (Holroyd J).

   [8] Settef SpA v Riv-Oland Marble Co (Vic) Pty Ltd (1987) 10 IPR 402, 413 (McGarvie J).

5. In the SGP the Opponent nominated a plain word trade mark and a logo trade mark. For reference I have reproduced the relevant trade marks below:

Opponent’s trade marks

Trade Mark

Opponent’s logo trade mark

E-PLANET

Opponent’s plain word trade mark

1. The test for determining whether the trade marks are substantially identical is set out in Shell Company Australia Ltd v Esso Standard Oil (Australia) Limited and requires that the trade marks are considered side by side while having regard to the essential features of the trade marks.[9] Where a total impression of resemblance emerges from the comparison, the trade marks will be considered substantially identical.

   [9] (1963) 109 CLR 407, 414 (Windeyer J).

2. I am satisfied that the Opponent’s logo trade mark is substantially identical to the Trade Mark.  However, on a side by side comparison of the Opponent’s plain word trade mark and the Trade Mark there are clear differences between the respective trade marks. While both trade marks share the hyphenated word E-PLANET, the Opponent’s plain word mark is for the hyphenated word E-PLANET solus. In comparison the Trade Mark contains the words EDUCATION PLANET and a diamond device divided by stylised waves. For these reasons, I find that the Opponent’s plain word trade mark and the Trade Mark are not substantially identical. The total impression emerging from a side by side comparison is not one of similarity.

3. The evidence establishes that the Opponent and Applicant are both Australian companies which provide education and migration services. Details of these companies follows:

   ·     The Opponent was registered on 7 September 2015 and listed Hari Presaid Sapkota and Moh Lal Lamichhane as directors. The records show that Moh Lal Lamichhane ceased being a director on 4 January 2016.[10]

   ·     The Applicant was registered on 4 June 2019 with Moha Lal Lamichhane and Bahgawait Lama listed as directors.[11]

   [10] Sapkota 1, [Exhibit HPS-2 to HPS-3].

   [11] Sapkota 1, [Exhibit HPS-1].

4. Education Planet Pvt Ltd (‘Nepal Company’) is a company registered in Nepal since 11 September 2005 and lists Moha Lamichanne as a promotor and sole shareholder.[12]

The Opponent

[12] Lamichanne declaration [Exhibits ML-1 to ML-2]

1. In Sapkota 1, Mr Sapkota declares that at the time of the Opponent’s inception in 2015, he and Moha Lal Lamichanne were directors. Together they selected and assumed ownership of the name E-PLANET and EDUCATION PLANET as well as the Opponent’s logo trade mark. Mr Sapkota declares that this was separate to the use of the same or similar trade marks in Nepal and any business conducted under those trade marks in Nepal.   

2. In Sapkota 1, Mr Sapkota states that since 2015 the Opponent has been active in the education and migrant agency service industry. Exhibit HPS-06 to Sapkota 1 comprises Industry declarations from customers and partners of the Opponent. The declarants state that they believe the Opponent’s logo trade mark is a trade mark of the Opponent and that they associate the logo trade mark with the Opponent’s education and migration agency services.

3. Exhibit HPS-5 to Sapkota 1 comprises copies of the Opponent’s financial statements for the financial years 2016 to 2020. The Sapkota 1 declaration also provides annual marketing expenditure for the financial years 2016 to 2020.

4. Exhibit HPS-9 to Sapkota 1 comprises copies of the Opponent’s promotional activities on its Facebook account featuring its logo trade mark dated from 17 May 2016 to 10 April 2019. Exhibit HPS-11 to Sapkota 1 comprises copies of photographs posted on the Opponent’s Facebook account showing the Opponent’s display stall featuring its logo trade mark which was set up at the Non Resident Nepali Association festival in Sydney held on 26 November 2016.

5. Exhibit HPS-10 to Sapkota 1 comprises copies of tax invoices from the Opponent to Australian universities and institutions featuring its logo trade mark dated 23 July 2016 to 22 July 2019.  

The Nepal Company and the Applicant

1. In the Lamichhane declaration, Mr Lamichhane declares that the Nepal Company coined the E-PLANET brand after rigorous thought and research before 2005. The E-PLANET brand included thetrade mark[13] which was designed in or around 2005.

   [13] The Trade Mark is identical to the trade mark coined by the Nepalese company and subsequently will be referred to as the Trade Mark.   

2. The Lamichhane declaration declares that the Nepal Company first used the Trade Mark in Australia in around November 2011. Confidential Exhibit ML-19 to the Lamichhane declaration comprises copies of invoices from the Nepal Company to Australian universities and institutions featuring the Trade Mark dated 22 March 2014 and 23 June 2015.

3. The Lamichhane declaration provides confidential annual consolidated revenue figures for the years 2011 to 2015 in relation to the supply of education and migrant agency services in Australia under the Trade Mark. The Lamichhane declaration also provides confidential marketing and advertising expenditure for the years 2011 to 2015 incurred by the Nepal Company in promoting the Trade Mark in Australia. Exhibits ML-22 to Lamichhane is an extract from the Nepal Company’s Facebook account which was created on 7 September 2011 and features the Trade Mark.

4. Exhibit ML-4 to the Lamichhane declaration is a signed copy of a Memorandum of Understanding (‘MOU’) between the Nepal Company and the Opponent dated 25 September 2015. The period of the MOU was 1 October 2015 to 31 December 2018.

5. Exhibit ML-5 to the Lamichhane declaration is a copy of an email from Mr Lamichhane to Mr Sapkota headed ‘Letter to Cancel Business Partnership’ dated 11 March 2020.

6. Exhibit ML-7 to the Lamichhane declaration is a signed copy of an MOU between the Nepal Company and the Applicant dated 10 June 2019. The period of the MOU is 10 June 2019 to 9 June 2024.

7. Exhibit ML-8 to the Lamichhane declaration is a copy of a letter dated 9 July 2019 from the Nepal Company to the Applicant providing authority to the Applicant to register the Trade Mark in Australia.

Assessment of the Evidence

1. In my assessment of the evidence, the Opponent continuously used its logo trade mark in Australia in relation to its education and migrant agency services from 2016.

2. However, under the MOU, the Opponent was authorised by the Nepal Company to use the Trade Mark and was the representative of the Nepal Company in Sydney. The Opponent was required to keep Mr Lamichhane informed of its activities and “maintain brand value” of the Nepal Company.  

3. The evidence of invoices from the Nepal Company shows that it first used the Trade Mark in Australia in 2014 and continued to use the Trade Mark until 2015 when the Nepal Company signed an MOU with the Opponent to be its representative in Australia.

4. Under the MOU, the agreement between the parties commenced from 1 October 2015 to 31 December 2018 ‘and shall continue until official agreement between both parties within six months of the working period’, unless otherwise terminated.

5. The Opponent used the Trade Mark from at least 1 October 2015 to 31 December 2018. Sapkota 1 confirms that Mr Lamichhane was involved in the Opponent’s company and with use of the Opponent’s trade marks from 2015 to 2018. Accordingly, any use of the Trade Mark during the period 1 October 2015 to 31 December 2018 inures to the benefit of the Nepal Company and not the Opponent.

6. The wording of the MOU is imprecise and unclear as to the situation after 31 December 2018. The MOU provides that the agreement ‘shall continue until official agreement between both parties within six months of the working period’, unless otherwise terminated. The MOU does not define the “working period” but it would seem to indicate the term of the agreement from 1 October 2015 to 31 December 2018. Therefore, I understand that the agreement between the parties was to continue for a further 6 months to 30 June 2019 whilst the parties reached a new agreement, unless the agreement was terminated in the meantime. Accordingly, the Opponent was effectively authorised to use the Trade Mark until 30 June 2019.    

7. The signing of the new MOU with the Applicant demonstrates that the Nepal Company had not abandoned the Trade Mark and although they delayed informing the Opponent of the termination of the agreement, any use of the Trade Mark after 11 March 2020 was clearly not authorised.

8. I am satisfied that the Nepal Company was the first to use the Trade Mark in Australia, and was the initial owner of the Trade Mark in Australia. However the trade mark application is in the name of the Applicant and not the Nepal Company. Exhibit ML-8 to the Lamichhane declaration is a copy of a letter from Nepal Company to the Applicant dated 9 July 2019. The letter gives the Applicant authority to apply to register the Nepal trade mark in Australia, but is unclear as to whether the trade mark application was to be made in the name of the Nepal Company or the Applicant. Exhibit ML-9 to the Lamichhane declaration is a Deed of Assignment between the Nepal Company and the Applicant made on 12 March 2021 confirming that the Nepal Company assigned the Trade Mark to the Applicant effective from 9 July 2019. Based on the documents filed as Exhibits ML-8 and ML-9, I am satisfied that the Applicant is the owner of the Trade Mark in Australia from 9 July 2019 and was entitled to file an application for registration of the Trade Mark. 

9. I find that the ground of opposition under s 58 of the Act has not been established.

Section 60

1. Section 60 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. In the SGP the Opponent particularised the ground of opposition under s 60 as follows:

   The trade mark that has acquired a reputation in Australia (number 2052769) may be described as a wave inside a stylised device divides diamond towards the right of the company name, “eplanet EDUCATION PLANET”, with “e-planet” in blue font and “EDUCATION PLANET” in red font. The earlier trade mark (number 2052769) was filed on 22 November 2019 in relation to Class 41 (education; providing of training; entertainment; sporting and cultural activities). The first use was on 7 September 2015, which is before the priority date of 31 July 2019 of the opposed application (number 2026778).

3. To satisfy s 60 of the Act the Opponent must establish that the trade mark upon which it relies had a reputation in Australia at the priority date of the Trade Mark. [14] The Opponent must then establish that because of that reputation use of the Trade Mark would deceive or cause confusion.

   [14] The priority date being the filing date of the application on 31 July 2019.

4. In McCormick & Co Inc v McCormick, Kenny J asked what is intended by the word ‘reputation’ in s 60. Her Honour consulted the Macquarie Dictionary and on the basis of the definition provided concluded that it was ‘the recognition of the [trade mark] by the public generally’12F9F[15] and quoted with approval the following words of Lockhart J in 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…13F10F[16]

   [15] [2000] FCA 1335, [81].

   [16] [1992] FCA 159, [118].

1. Justice Kenny 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 sale or turnover of goods sold under the 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 sale, 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 sponsorship, 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 sale 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 association of the trade marks with the goods or services themselves.14F11F[17]

   [17] Hugo Boss AG v Jackson International Trading Co Kurt D Bruhl Gesellschaft MbH & Co KG (1999) 47 IPR 423, 436.

2. What constitutes a significant or substantial number of persons in the relevant market must be considered. Justice Heerey in Le Cordon Bleu BV v Cordon Bleu International Ltd (albeit in relation to paragraph 28(a) of the now superseded Trade Marks Act 1955 (Cth)) provided some guidance:

   What is ‘significant’ or ‘substantial’ will depend on the nature of the goods or services in question. For some highly specialised products, awareness among a few thousand persons, or even less, might be sufficient …15F12F[18]

   [18] [2000] FCA 1587, [91].

3. In the SGP the Opponent has nominated its logo trade mark which is the subject of trade mark application 2052769 and has a filing date of 22 November 2019. The Opponent claims that the first use of its logo trade mark was on 7 September 2015 which is before the priority date of the Trade Mark.

4. However, I have already found that the Opponent is not the owner of the Trade Mark and was an authorised user of the Trade Mark under the MOU until at least 31 December 2018, and more likely until 30 June 2019. Even if the most favourable interpretation of the term of the MOU is adopted the Opponent can only rely on its use of its logo trade mark from 1 January 2019 up to the priority date of the Trade Mark.

5. The evidence of use during this period, shows that the Opponent promoted its logo trade mark via its social media account with Facebook, however its sales and advertising figures for this period are insignificant.

6. In the circumstances I am not satisfied that at the priority date of the Trade Mark, the Opponent had acquired a reputation in Australia in its logo trade mark amongst a significant or substantial number of persons in the relevant market such that use of the Trade Mark would be likely to deceive or cause confusion.

7. I find that the ground of opposition under s 60 of the Act has not been established.

Section 62A

1. Section 62A provides:

   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.

2. In the SGP the Opponent particularised the ground of opposition under s 62A as follows:

   The trade mark (2026778) was made in bad faith to materialise the goodwill and reputation our trade mark (2052769) has acquired since Education Planet Pty Ltd has started using this trade mark since 07 September 2015. The applicant (Mr. Moha Lai Lamichhane) of the trade mark (2026778) was the share holder and the employee of Education Planet Pty Ltd until February 2016.

3. Whether an application to register the Trade Mark was made in bad faith requires me to first consider the Applicant’s state of knowledge at the time of making the application and then decide whether the Applicant’s behavior fell short of acceptable commercial standards.[19]

   [19] Fry Consulting Pty Ltd v Sports Warehouse (No 2) [2012] FCA 81, [164]-[167] (Dodds-Streeton J).

4. I have already found that the Applicant is the owner of the Trade Mark in Australia.  As there are no other aspects of the Opponent’s evidence that point to any activity or actions taken by the Applicant that might be indicative of behaviour that is unscrupulous, underhanded or unconscientious in character, I am not satisfied that the application for the Trade Mark was made in bad faith.

5. I find that the ground of opposition under s 62A of the Act has not been established.

Section 43

1. Section 43 provides:

   43  Trade mark likely to deceive or cause confusion

   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. In the SGP the Opponent particularised the ground of opposition under s 43 as follows:

   The trade mark number (2026778) is likely to cause confusion among our clients because it is widely used by Education Planet Pty Ltd since 07 September 2015. Education Planet Pty Ltd has a large number of stakeholders such as Department of Home Affairs, Australian Universities/Colleges, international students studying in Australia, temporary and permanent visa holders in Australia and community organisations. The use of this trade mark by other party no only deceives customers but also make confusions. And this confusion significantly ruins our business and deceives our clients.

3. Section 43 requires the Opponent to establish that there is a connotation within the Trade Mark, and because of that connotation, the use of the Trade Mark would be likely to deceive or cause confusion.

4. A connotation is a secondary meaning implied by the trade mark.[20] As noted by Spencer J in Winton Shire Council v Lomas:

   Section 43 is directed at the mark itself, it is not concerned with any deception or confusion caused by the reputation in Australia of some other trade mark. That aspect of the matter is dealt with under s 60.[21]

   [20] Pfizer Products Inc v Karam [2006] FCA 1663, [53] (Gyles J).

   [21] [2002] FCA 288, [19].

5. In the present case, the Opponent has not identified a connotation inherent in the Trade Mark nor is one readily apparent.

6. I find that the ground of opposition under s 43 of the Act has not been established.

Decision

1. Section 55 of the Act provides:

   55  Decision

   (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.

2. The Opponent has not established a ground of opposition. Accordingly, I decide that trade mark number 2026778 may proceed to registration.

3. If the Registrar is served with a notice of appeal, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the application should otherwise be in accordance with the Court’s order or direction.

Costs

1. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Opponent under s 221 of the Act in line with the amounts set out in Schedule 8 of the Regulations.

Louise Tuohy

Hearing Officer

Delegate of the Registrar of Trade Marks

30 November 2022