Elizabeth O’Connor-Cowley and Philip Cowley v Accent Lifestyle Pty Ltd

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Elizabeth O’Connor-Cowley and Philip Cowley to application by Accent Lifestyle Pty Ltd to remove trade mark registrations 1084181 (classes 3, 16, 20, 21, 24, 25 and 28) and 1826475 (classes 14 and 18) – article: - both in the name of Elizabeth O’Connor-Cowley.

Delegate:

Nicole Worth

Representation:

Removal Opponent: self-represented

Removal Applicant: Written submissions prepared by James Neil, Clayton Utz

Decision:

2023 ATMO 197

Trade Marks Act 1995 (Cth) – applications to remove registrations under 92(4)(a) and 92(4)(b) – opposition thereto – relevant intention by registered owners not established – 92(4)(a) established – registrar’s discretion applied – registrations partially removed

Background

This decision is in respect of two applications filed by Accent Lifestyle Pty Ltd (‘Removal Applicant’) to completely remove the trade marks detailed below from the Register of Trade Marks.

Registration number: 1084181

Registration number: 1826475

Filing date: 4 November 2005

Filing date: 16 February 2017

Goods:

Class 3: Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices

Class 16: Paper, cardboard and goods made from these materials, not included in other classes and not including printed matter; bookbinding material; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); plastic materials for packaging (not included in other classes); printers' type; printing blocks

Class 20: Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all of these materials, or of plastics

Class 21: Household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes

Class 24: Textile and textile goods, not included in other classes; bed and table covers

Class 25: Clothing, footwear, headgear

Class 28: Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees

Goods:

Class 14: Precious metals and their alloys; jewellery; precious stones; keyrings; decorative charms

Class 18: Bags made from leather and imitations of leather; handbags; body, shoulder and wrist straps for handbags; wallets; pouches; purses; clutches; credit card cases; travelling bags

I will refer to the two registrations collectively as the ‘Trade Marks’ or, where context demands it, I will refer to the ‘Trade Mark’ (given the registrations are in respect of an identical sign).
The Trade Marks are currently registered in the name of Elizabeth O’Connor-Cowley, although until 7 July 2022 they were registered in the names of Elizabeth O’Connor-Cowley and Philip Cowley, both of whom oppose the removal applications (‘Removal Opponents’).
The Removal Opponents filed a Notice of Opposition[1] and the Removal Applicant filed a Notice of Intention to Defend its removal applications. The parties then filed their evidence in due course, described in more detail below. The Removal Applicant requested a hearing by written submissions and filed said submissions on 16 October 2022. The Removal Opponents did not file submissions.
[1] Comprising a Notice of Intention Oppose removal and a Statement of Grounds and Particulars particularising their opposition to removal.
The matter has now been allocated to me to decide, as a delegate of the Registrar of Trade Marks. I base my decision upon the aforementioned materials. In this decision, all references to a section are references to the Trade Marks Act 1995 (Cth) and all references to a regulation are references to the Trade Marks Regulations 1995 (Cth), unless otherwise stated.
Evidence
The parties filed the following declarations, each of which was filed in respect of both registrations:
Evidence in support
Declaration by Elizabeth O’Connor-Cowley and Philip Cowley, Directors of O’Connor & Cowley Concepts Pty Ltd, with Addendums 1 to 16, dated 4 March 2022. (‘Cowley 1’).
Evidence in answer
Declaration by Darren Todd, General Manager – ‘Accent Lifestyle’ of Accent Group Limited, dated 14 June 2022 (‘Todd’).
Declaration by James Neil, Partner of Clayton Utz, with Exhibits JRRN-1 to JRRN-9, dated 15 June 2022 (‘Neil’).
Evidence in reply
Declaration by Elizabeth O’Connor-Cowley, with Addendums 1 to 8, dated 19 August 2022 (‘Cowley 2’).
The Removal Opponents operate a business specialising in handbags, jewellery, scarves, capes and wraps, selling them under the Trade Mark. A number of media articles indicate that the brand was launched in March 2019, some of them making reference to the Removal Opponents’ previous success with a children’s wear brand and hence public interest in the new venture under the Trade Mark. The articles are from Brisbane News, Indulge Magazine, Brisbanista, The Courier Mail and FMagazine.[2]
[2] Cowley 1, Addendums 10, 11 and 14.
The line of goods under the Trade Marks are described as ‘luxe’ by Ms O’Connor-Cowley, and they have been promoted and sold at events or through channels that correspond with goods in that market segment. These include pop-up shops at The Calile Hotel in Brisbane and as part of Brisbane Fashion Month, runway shows in the Mercedes-Benz Fashion Festival Brisbane and the Brisbane Fashion Festival, and a stall at the 2019 Life InStyle Melbourne tradefair. Goods under the Trade Mark are also sold via the website ‘
The Removal Opponents declare that they had every intention to use the Trade Mark in Australia and that they have fulfilled that obligation. They further declare that:
We have a Licence Agreement, that has been in place from the date our trademarks were registered (Trademark 1084181 since 4 November 2005 and Trademark 1826475 since 16 February 2017), which authorises the use of the above-mentioned trade marks to ourselves – Elizabeth O’Connor-Cowley and Philip Cowley of O’Connor & Cowley Concepts Pty Ltd, trading as article:®.
This is reiterated somewhat in Ms O’Connor-Cowley’s evidence in reply:
I have a Licence Agreement, that has been in place from the date my trademarks were registered (Trademark 1084181 since 4 November 2005 and Trademark 1826475 since 16 February 2017), which authorises the use of the above-mentioned trade marks to me – Elizabeth O’Connor-Cowley of O’Connor & Cowley Concepts Pty Ltd, trading as article:®
It is not stated whether the license agreement was verbal or existed in writing. There is no license document in evidence.
In response to a line of argument by the Removal Applicant, Cowley 2 seeks to show that scarves, capes and wraps fall within the definition of clothing by adducing various definitions of ‘clothing’, ‘cape’, ‘scarf’ and ‘wrap’ and adducing the description of class 25 goods available on the IP Australia website. Ms O’Connor-Cowley also declares her intention to expand into the clothing category as the article:® brand grows.
The Removal Applicant operates a menswear line under the trade mark ARTICLE ONE.
At the time Todd was declared registration 1084181 was a barrier to the Removal Applicant’s applications to register its trade mark ARTICLE ONE.[3] Todd therefore outlines the harm to the Removal Applicant if it cannot gain registration of its own trade marks.
[3] Those applications, numbers 2055820 and 2110541, have since progressed to registration under the provisions of s 44(3)(b).
Mr Todd declares to have had more than 30 years of experience in the retail industry and gives his opinion that accessories are a separate product category in the Australian fashion and apparel industry. Having viewed the Removal Opponents’ website, he asserts that the Removal Opponents’ business is an accessories business and not a clothing or apparel business.
Also for the Removal Applicant, Mr Neil adduces pages from the Removal Opponents’ website as at 15 June 2022 and 30 September 2021 (the latter obtained via the ‘Wayback Machine’ archive). Those pages state that ‘article:® is a unique, contemporary brand creating “limited edition” and “signature classic” capsule collections of artsy luxe accessories specialising in handbags and leather goods for discerning individuals.’[4]
[4] Neil, JRRN-1.
Mr Neil recounts that when he first became involved in the matter in mid 2021, he viewed the homepage of the Removal Opponent’s website and under the drop-down menu of ‘women’ one of the sub-categories was ‘Other Accessories’. When he clicked on ‘Other Accessories’ the resolving web page displayed three products, two named ‘scarf/wrap’ and the third ‘blanket/cape’. Extracts obtained via the ‘Wayback Machine’ archive, dated 28 February 2021 and 27 January 2021 respectively for the homepage and the subsequent resolving web page, are exhibited.[5]
[5] Neil, JRRN-3 and JRRN-4.
Mr Neil also adduces a copy of the Removal Opponents’ ‘Terms and Conditions’ published on its website, which states:
Welcome to (the “Website”). The following Terms and Conditions of Use set forth below govern your use of the “O’Connor + Cowley Concepts Pty Ltd T/A article:®” Website. These Terms and Conditions are legally binding on you. article:® may change, add or remove portions of these Terms and Conditions of Use at any time…[6]
[6] Neil, JRRN-6 and JRRN-7.
Also exhibited in Neil are copies of the Australian Business Register records of O’Connor & Cowley Concepts Pty Ltd[7] and an invoice from a sample purchase made by another employee of Clayton Utz in April 2022.[8] The former lists ARTICLE as a business name of O’Connor & Cowley Concepts Pty Ltd, listed from 14 October 2005. The latter itemises the purchase of a ‘Scarf/Wrap’ and displays a prominent image of the Trade Mark at the top of the invoice underneath which is listed the name ‘O’Connor & Cowley Concepts Pty Ltd T/A article:®’.
[7] Neil, JRRN-8.
[8] Neil, JRRN-9.
Legal Framework
The application to remove registration 1084181 was filed on 23 September 2021 and was made under ss 92(4)(a) and 92(4)(b). The application to remove registration 1826475 was also filed on 23 September 2021 but it was made only under s 92(4)(a) (the requisite period of time to file a removal application under 92(4)(b) having not passed in respect of the later registration).
As will be seen it is necessary to address only the ground for removal under s 92(4)(a). The section relevantly provides:
92 Application for removal of trade mark from Register etc.
…
(4) An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:
(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:
(i) to use the trade mark in Australia; or
(ii) to authorise the use of the trade mark in Australia; or
(iii) 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 to which the non‑use application relates and that the registered owner:
(iv) has not used the trade mark in Australia; or
(v) has not used the trade mark in good faith in Australia;
in relation to those goods and/or services at any time before the period of one month ending on the day on which the non‑use application is filed;
An application under s 92(4)(a) may be made at any time after the filing of the application to register the trade mark.
Section 96 allows for a person to oppose an application for removal by filing a notice of opposition, and s 100(1) places the onus to rebut an allegation of non-use on an opponent. Section 100(2) provides that an opponent is taken to have rebutted the allegation of non-use if it establishes that the trade mark (without additions or alterations substantially affecting its identity) was used in good faith by the registered owner before the relevant date. Note 1 to s 100(2) allows for authorised use to be taken as use by the registered owner in accordance with s 7(3).
Section 101(1) provides that the Registrar may remove a trade mark for any or all of the goods or services to which the application for removal relates, if satisfied that the grounds for removal are established. Alternatively, s 101(3) bestows upon the Registrar a discretion not to remove a trade mark, even where the grounds for removal are established. Section 101(4) provides two examples of matters the Registrar may take into account in deciding whether to exercise the discretion but does not limit the matters the Registrar may take into account.
I proceed on the basis that the standard of proof required of the Removal Opponents is on the balance of probabilities.[9]
[9] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ) in respect of oppositions under s 52 of the Act.
Section 92(4)(a)
There are a number of exhibits which demonstrate use of the Trade Mark. ‘Use’ per se does not appear to be the issue. Rather, the controversy under s 92(4)(a) is whether the Removal Opponents held the requisite intention to use, authorise use of, or assign to a body corporate, the Trade Marks when they filed the applications to register them.
With regard to intention, the Removal Opponents make the following statements:
On the day on which the applications for the registrations of the trademarks were filed, it was our every intention to use the trademarks in Australia. This was our sole purpose of making/paying for our trademark applications and we have fulfilled the obligation.
We are company Directors of ‘O’Connor & Cowley Concepts Pty Ltd’.
We have a Licence Agreement, that has been in place from the date our trademarks were registered (Trademark 1084181 since 4 November 2005 and Trademark 1826475 since 16 February 2017), which authorises the use of the above-mentioned trade marks to ourselves – Elizabeth O’Connor-Cowley and Philip Cowley of O’Connor & Cowley Concepts Pty Ltd.[10]
[10] Cowley 1, [2]-[4].
In respect of these statements the Removal Applicant submits:
[T]his evidence does not discharge the Opponent’s onus to demonstrate their requisite intention as at the filing date of each Registration. The Opponents chose (for some reason which is not explained in the evidence) to file the applications for the Registrations jointly in their own personal names. O'Connor & Cowley Concepts Pty Ltd was registered at that time. Even if the Opponents are or were company directors of O'Connor & Cowley Concepts Pty Ltd at that time, it is plain that any intention they held as at each filing date was for the Trade Mark to be used by a company which was already in existence at that time. That is because the only evidence of any such use is use by that company.[11]
[11] The Removal Applicant’s written submissions, [23].
The Removal Opponents give no explanation as to why the applications to register the Trade Marks were filed in their personal names, as opposed to the company of which they were directors and which subsequently used the Trade Mark. From statements made in Cowley 1 and Cowley 2, I consider it likely that the Removal Opponents do not consider themselves as separate to the company of which they are (or were[12]) directors, or at least that they do not fully comprehend that the company is a separate legal entity to themselves. This would accord with Ms Cowley’s statement in Cowley 2 that:
I am confused as to why the Removal Applicant has made an “Application for Removal / Cessation of Protection for Non-Use” under Section 92(4)(a). It is my understanding that there are no grounds to be relied on as it is very obvious that I have been trading with and continue to trade with the above-mentioned trademark and both [the Removal Applicant’s] declarations acknowledge this.[13]
[12] The status of Mr Cowley is not provided in Cowley 2, and Ms Cowley speaks of the alleged license agreement only in respect of herself in Cowley 2.
[13] Cowley 2, [30].
The difficulty with this misunderstanding is that the Removal Opponents have consequently relied upon an alleged license agreement and use by O’Connor & Cowley Concepts Pty Ltd to prove their own intention and subsequent use.
Cowley 1 and Cowley 2 both contain statements to the effect that a license agreement exists. No written agreement is in evidence, and if the statements in Cowley 1 and Cowley 2 relate to a verbal or implied license, they are expressed in ambiguous terms. Firstly, although O’Connor & Cowley Concepts Pty Ltd is identified in the statements as being the company ‘of’ Mr and Ms Cowley, the wording of the sentence appears to authorise the individuals and not the company. Secondly, the claimed license is originally expressed as being in relation to two people in Cowley 1, but in Cowley 2 it is subsequently expressed as being in relation to one person:
We have a Licence Agreement, that has been in place from the date our trademarks were registered (Trademark 1084181 since 4 November 2005 and Trademark 1826475 since 16 February 2017), which authorises the use of the above-mentioned trade marks to ourselves – Elizabeth O’Connor-Cowley and Philip Cowley of O’Connor & Cowley Concepts Pty Ltd, trading as article:®
I have a Licence Agreement, that has been in place from the date my trademarks were registered (Trademark 1084181 since 4 November 2005 and Trademark 1826475 since 16 February 2017), which authorises the use of the above-mentioned trade marks to me – Elizabeth O’Connor-Cowley of O’Connor & Cowley Concepts Pty Ltd, trading as article:®
(underline added)
In respect of use, the evidence before me establishes that it was O’Connor & Cowley Concepts Pty Ltd which used the Trade Mark. It is that name which is identified upon the invoice provided in respect of the sample purchase described by Mr Neil. It is also that name which appears in the Terms and Conditions on the Removal Opponents’ website, which further identify article:® as a trading name of O’Connor & Cowley Concepts Pty Ltd. Similarly, the Australian Business Register records of O’Connor & Cowley Concepts Pty Ltd identify article:® as a business name of the company, not of either or both of Ms Cowley or Mr Cowley. Additionally, invoices relating to the Removal Opponents’ participation in the Life InStyle Tradefair, the Mercedes Benz Fashion Festival Brisbane and the Brisbane Fashion Festival are all issued to O’Connor & Cowley Concepts Pty Ltd.
I bear in mind the findings in Trident Seafoods Corporation v Trident Foods Pty Ltd (‘Trident’)[14] and Watson as Trustee for the Watson Family Trust v Cosmetic Warriors Ltd (‘Watson’),[15] both of which are decisions under s 92(4)(b). In Trident it was inferred that a company and its wholly owned subsidiary, who had the same directors at all relevant times and who operated from the same place of business, must have acted with a unity of purpose and therefore use by the company fell within the meaning of ‘authorised use’ in s 8. In Watson circumstances similar to those here arose, in particular that an individual relied upon use by his own company(s) to establish use of a trade mark registered in his personal name in order to avoid removal. There, however, Greenwood J placed significant reliance on oral evidence which provided detailed explanation of the individual’s roles, duties and tasks in the operation of his businesses. To that end, his Honour was satisfied that all of the corporate entities involved were the operations of a ‘one-man band’ and were his ‘alter ego’,[16] and as such the use that was established was under his control (and therefore authorised).
[14] [2019] FCAFC 100, [45] (Reeves, Jagot and Rangiah JJ) (‘Trident’).
[15] [2022] FCA 700 (Greenwood J) (‘Watson’).
[16] Watson (n 14) [116].

It is not clear that those cases would apply to s 92(4)(a), however, assuming for the time being that they do, I do not consider that either a unity of purpose or an ‘alter ego’ are established here. The Removal Opponents’ statements are quite brief, they do not state whether the directors of O’Connor & Cowley Concepts Pty Ltd are only Mr and Ms Cowley or whether the directorship changed at the time Cowley 2 was adduced. Nor do they describe the responsibilities or tasks carried out by Mr and Ms Cowley.
The Removal Opponents have been put on notice that their intention at the date of applying for the registration of the Trade Marks was in issue. They appear to have misunderstood that use by O’Connor & Cowley Concepts Pty Ltd does not equate to use by themselves in their personal capacity, and that they have not provided further detail which might enable a finding a of ‘unity of purpose’ or an ‘alter ego’ between themselves and their company.
Grounds for removal are therefore established under s 92(4)(a) in respect of both registrations 1084181 and 1826475.
The Registrar’s Discretion
Section 101(3) provides:
If satisfied that it is reasonable to do so, the Registrar or the court may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.
The Removal Opponents bear the onus of satisfying me that it is reasonable to exercise the discretion in their favour.[17] The discretion is broad and limited only by the subject-matter, scope and purpose of Part 9 of the Act. In Austin, Nichols & Co Inc v Lodestar Anstalt, the purpose of Part 9 was expressed as follows:
The purpose of Part 9 is to provide for the removal of unused trade marks from the Register. In that regard it is plainly designed to protect the integrity of the Register, and in this way, the interests of the consumer. At the same time, however, it seeks to accommodate, where reasonable, the interests of the registered trade mark owners.[18]
[17] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [273] (Yates J).
[18] [2012] FCAFC 8, [44] (Jacobson, Yates and Katzmann JJ).
A range of circumstances may be considered in exercising this discretion, which need not be exceptional but must be sufficient to satisfy me that it is reasonable to do so.[19] Factors that have been held to be relevant were summarised in PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd,[20] and included any abandonment of the mark or residual reputation in it, sales under the mark after the relevant period, whether the removal applicant had entered the market knowing of the registered mark, and whether there had been use in respect of similar goods or closely related services.
[19] E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934, [198] (Flick J).
[20] [2021] FCAFC 128, [153] (Jagot, Nicholas and Burley JJ).
I note further that Gleeson J, in the first instance decision Trident Seafoods Corporation v Trident Foods Pty Limited, indicated that use by a related company which had not been established as an authorised user may be a relevant consideration in the exercise of the discretion.[21]
[21] [2018] FCA 1490, [115].
Here, public use of the Trade Mark is evident from March 2019, albeit in respect of a limited range of goods including handbags, jewellery, scarves and wraps. The articles in the Brisbane News are from issues dated in March 2019.[22] The articles refer both to the Trade Mark and to the pop-up shop at the Calile Hotel (photos of which are in evidence, but they are undated), and what appears to be the launch of the brand. Similarly, other media articles in evidence[23] refer to the Trade Mark and display goods for sale under it. I also infer from dated invoices for participation in the Life InStyle Tradefair,[24] the Mercedes Benz Fashion Festival Brisbane,[25] and the Brisbane Fashion Festival[26] that the undated photographs relating to those events were taken around the dates of the invoices (in 2019 and 2021). Invoices for the sale of goods under the Trade Mark made via the website are adduced and are dated in 2020, 2021 and 2022.[27] Similarly, extracts of the website displaying the goods available under the Trade Mark are provided by both parties dated up to 2022. As such, there appears to be no indication of any abandonment or cessation of use of the Trade Mark, rather it has been actively traded under.
[22] Cowley 1, Addendum 10.
[23] Cowley 1, Addendums 11 and 14.
[24] Cowley 1, Addendum 4.
[25] Cowley 1, Addendum 5.
[26] Cowley 1, Addendum 6.
[27] Cowley 1, Addendum 16.
I note also the observation of Finn J in C A Henschke & Co v Rosemount Estates Pty Ltd that:
I can see no useful purpose to be served by removing the trade mark from the register simply for the purpose of, in effect, compelling a fresh application to be made [by the opponent].[28]
[28] [1999] FCA 1561, [170].
In these circumstances I am satisfied that it is reasonable to exercise my discretion to maintain registration of the Trade Marks, but only in respect of the limited range of goods for which use has been shown. These are:
Class 14: jewellery; key rings; decorative charms.
Class 18: Bags made from leather and imitations of leather; handbags; body, shoulder and wrist straps for handbags; wallets; pouches; purses; clutches; credit card cases.
Class 25: scarves, wraps, capes.
I note that the parties contested whether use in respect of ‘scarves, wraps and capes’ amounted to use in respect of ‘clothing’. Whilst I agree that scarves, wraps and capes are items of clothing, I do not consider it appropriate to maintain registration in respect of the entire gamut of items that may fall within the description ‘clothing’. The registration which lists class 25 has been registered for approximately 18 years, and in that time there is no use or apparent intended use in respect of anything other than scarves, wraps and capes (other than a bare statement of intention by Ms Cowley, which I consider an insufficient basis upon which to exercise the discretion to maintain the broader description). Accordingly, the description of goods in class 25 is to be limited as described below.
Decision
The Removal Opponents have not rebutted the allegation of non-use under s 92(4)(a) in respect of either of the registrations 1084181 or 1826475.
However, I am satisfied that it is reasonable to exercise the Registrar’s discretion and retain the registrations for the goods set out at [43] of this decision.
Accordingly, I direct that one month from the date of this decision the specifications of goods in the registrations be amended as follows:
Registration 1084181
Delete all goods with the exception of amending ‘Clothing, footwear, headgear’ to ‘Scarves, wraps, capes’, shown below.
~~Class 3:~~ ~~Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices~~
~~Class 16:~~ Paper, cardboard and goods made from these materials, not included in other classes and not including printed matter; bookbinding material; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); plastic materials for packaging (not included in other classes); printers' type; printing blocks
~~Class 20:~~ Furniture, mirrors, picture frames; goods (not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother-of-pearl, meerschaum and substitutes for all of these materials, or of plastics
~~Class 21:~~ Household or kitchen utensils and containers (not of precious metal or coated therewith); combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes
~~Class 24:~~ ~~Textile and textile goods, not included in other classes; bed and table covers~~
~~Class 25:~~ ~~Clothing, footwear, headgear.~~ Scarves, wraps, capes
~~Class 28:~~ ~~Games and playthings; gymnastic and sporting articles not included in other classes; decorations for Christmas trees~~
Registration 1826475
Class 14: ~~Precious metals and their alloys;~~ jewellery; ~~precious stones;~~ keyrings; decorative charms
Class 18: Bags made from leather and imitations of leather; handbags; body, shoulder and wrist straps for handbags; wallets; pouches; purses; clutches; credit card cases~~; travelling bags~~
If the Registrar is served with a notice of appeal before then I direct that removal shall not occur until the appeal has either been discontinued or, in the event of a decision from the Court, that the registration be dealt with as the Court sees fit.
Costs
The parties requested costs. However as both parties have had a degree of success each party should bear its own costs.
Nicole Worth
Hearing Officer
Delegate of the Registrar of Trade Marks
30 November 2023

[2023] ATMO 197

30 November 2023