Factory X v Harvey Norman Retailing Pty Ltd

[2019] ATMO 145

TRADE MARKS ACT 1995

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

Re:Opposition by Factory X to registration of trade mark applications 1875373(35) BLACK TAG FRIDAY & 1875387(35) BLACK TAG FRIDAY and device in the name of Harvey Norman Retailing Pty Ltd

Delegate:

Katrina Brown

Representation:

Opponent: Siobhan Ryan of counsel

Applicant: Beth Oliak of counsel instructed by Sarah MacDonald and Kate Cook of Harvey Norman Retailing Pty Ltd

Decision:

2019 ATMO 145

Trade Marks Act 1995 – section 52 opposition – grounds pursued under ss 42(b), 44 and 60 – no ground established – trade marks to proceed to registration

Background

1. This decision is in respect of an opposition under section 52 of the Trade Marks Act 1995 (‘the Act’) by Factory X (‘the Opponent’) to the registration of the following trade marks (‘the Trade Marks’):

Trade Mark No	1875373	1875387
Trade Mark	BLACK TAG FRIDAY
Applicant	Harvey Norman Retailing Pty Ltd (‘the Applicant’)
Filing Date	25 September 2017
Specification	Class 35: Retail and business services as specified at Annexure 1.

1. The applications for the Trade Marks were examined as required under s 31 of the Act. Acceptance of the Trade Marks was advertised in the Official Journal of Trade Marks on 15 February 2018.  

2. The Opponent filed a Notice of Intention to Oppose followed by a Statement of Grounds and Particulars (‘SGP’) in respect of each of the oppositions.

3. The Applicant filed Notices of Intention to Defend each of the oppositions.

4. In due course, the parties filed evidence in support of the oppositions and evidence in answer. The Opponent did not file evidence in reply.  

5. These matters came before me, a delegate of the Registrar of Trade Marks, for hearing in Canberra on 25 June 2019. The Opponent was represented by Siobhan Ryan of counsel. The Applicant was represented by Beth Oliak of counsel, instructed by Sarah MacDonald and Kate Cook of the Applicant. Michael Malanos and Jennifer Chen of the Applicant observed the hearing via video conference.

Grounds of opposition and onus

1. In each SGP the Opponent nominated grounds of opposition under ss 42(b), 44 and 60.

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

   [1] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58 [32].

   [2] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156 [132].

3. The date at which the rights of the parties are to be determined is 25 September 2017 (‘the Relevant Date’).

Evidence

1. The parties rely on the following declarations:

Evidence in support

• Declaration of Kara Ann Brooks (Senior Marketing Manager of the Opponent) made on 12 September 2018 with Annexures KB-1 to KB-8 (‘Brooks Declaration’);

• Declaration of Kenneth Malcolm Fong (Chief Financial Officer of the Opponent) made on 12 September 2018 with Annexures KF-1 to KF-5 (‘Fong Declaration’);

• Declaration of David Patrick Heeney (Managing Director of the Opponent) made on 12 September 2018 with Annexures DH-1 to DH-6 (‘Heeney Declaration’); and

• Declaration of Kimberly Jane Keller (Human Resources, Payroll and Web Development Manager of the Opponent) made on 12 September 2018 with Annexures KK-1 to KK-6 (‘Keller Declaration’).

Evidence in answer

• Declaration of John Evyn Slack-Smith (Director of the Applicant) made on 21 December 2018 with Annexures JESS-1 to JESS-5 and JESS-C1 (‘Slack-Smith Declaration’); and

• Declaration of Martin Lindsay Anderson (General Manager of Generic Publications Pty Ltd) made on 20 December 2018 with Annexures MLA-1 to MLA-15 and MLA-C1 (‘Anderson Declaration’).

The Applicant

1. The Applicant is a wholly owned subsidiary of Harvey Norman Holdings Limited (‘HNHL’). The Slack-Smith Declaration provides the following information about the Applicant and HNHL:

   [The Applicant] owns valuable intellectual property rights, including the trade mark “Harvey Norman” (Brand Trade Mark) and [the Opponent’s Trade Marks] (collectively, HNIP). [The Applicant] licences the HNIP to other wholly owned subsidiaries of HNHL…and wholly owned subsidiaries of HNHL who grant franchises (including rights to use HNIP) to independent franchisees.

   Wholly owned subsidiaries of HNHL own or lease shopping complexes, in Australia, branded with the Brand Trade Mark (Branded Complexes).

   As at 31 July 2017 there were 169 Branded Complexes within Australia….

   A subsidiary of HNHL (each a relevant franchisor) grants separate franchises to independent franchisees to use certain confidential information, software and HNIP and to conduct the retail business of the Franchisee at or from a store within a Branded Complex or at or from an online platform…

   As at 31 July 2017 there were a total of 542 Franchisees that have been licenced to use the HNIP within Branded Complexes.[3]

   [3] Slack-Smith Declaration [6].

The Opponent

1. The Heeney Declaration provides the following information about the Opponent:

   Factory X is in the business of designing, manufacturing, promoting, distributing, offering for sale and selling clothing and clothing accessories under various labels including Black Friday, Gorman, Alannah Hill, Dangerfield, Jack London, Claude Maus and Princess Highway.

   Factory X operates retail stores for its various brands in all major cities and territories in Australia and New Zealand. Each of its various brands are available for purchase online.[4]

   [4] Heeney Declaration [8].

2. The Opponent is the owner of the following trade mark registration in Australia:

Registration No:              1168011

Trade Mark:  BLACK FRIDAY (‘the Opponent’s Trade Mark’)

Filing Date:  26 March 2007

Specification:                   Class 25: Clothing, footwear, headgear and accessories being scarves, belts and gloves

Class 35: Retailing and wholesaling services, including of clothing, footwear, headgear and accessories.

1. The Heeney Declaration states that BLACK FRIDAY was chosen as a trade mark because the Opponent:

   wanted to create a brand at Factory X aimed at the Gothic market. By ‘Gothic market’, I am referring to potential purchasers of gothic-inspired fashion…The BLACK FRIDAY Trade Mark was selected to evoke a sad, depressed, morbid and dark tone, being characteristics commonly associated with the Goth subculture.[5]

   [5] Ibid [12].

2. The Fong Declaration provides the following overview of the use of the Opponent’s Trade Mark:

   Since at least 2007, Factory X has designed, promoted, marketed, advertised, distributed, offered for sale and sold clothing and clothing accessories branded with and by reference to the BLACK FRIDAY trade mark. The first range of clothing products and accessories promoted by reference to the BLACK FRIDAY brand was the Spring 2007 range.

   Factory X sells its BLACK FRIDAY branded clothing and clothing accessories through various retailers around Australia and from its online store located at domain name

   [6] Fong Declaration [9].

Section 44

1. Section 44 of the Act relevantly provides:

   (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 similar services or closely related goods.

2. The Opponent must establish that the Trade Marks are substantially identical with, or deceptively similar to, another trade mark with an earlier priority date, in the name of a person other than the Applicant, in respect of similar services or closely related goods.

3. The Opponent’s Trade Mark is nominated in each of the SGPs as the basis for this ground of opposition. From the information set out at [13] of this decision, it is evident that the Opponent’s Trade Mark is held in a name other than that of the Applicant and the priority date is earlier than that of the Trade Marks.

4. In this matter, the comparison of the services is straightforward. The Opponent’s Trade Mark has a broad claim in class 35 for retailing and wholesaling services. Contrary to the Applicant’s submissions, the word ‘including’ does not limit the Opponent’s claim. The Opponent essentially has a claim in class 35 for the retail and wholesale of any goods including the retailing and wholesaling of specific goods claimed by the Applicant.

5. The remaining question to be answered under s 44(2) is whether the Trade Marks are substantially identical with, or deceptively similar to, the Opponent’s Trade Mark.

Substantially identical

1. The test for determining whether trade marks are substantially identical is set out in Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (‘Shell’):

   they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[7]

   [7] [1963] HCA 66, [12] (‘Shell’).

2. As the test for substantial identity involves a side by side comparison, I have reproduced the Trade Marks and the Opponent’s Trade Mark below:

   
   BLACK TAG FRIDAY  BLACK FRIDAY

3. On a side by side comparison it is evident that there are differences, namely the additional word ‘tag’ in the Trade Marks. Nevertheless, the Opponent asserts that a total impression of resemblance emerges from a side by side comparison:

   The essential or distinguishing feature shared by the Applicant’s Trade Mark and the Black Friday Trade Mark is the common “BLACK” and “FRIDAY” component, which is visually and aurally identical in the marks. The word “TAG”, in the context of the Applicant’s Services is wholly descriptive as tags are commonly used for retail and wholesale services to promote pricing.[8] 

   [8] Opponent’s submissions 9, [29].

4. When carrying out a side by side comparison it is important to be cognisant of the essential elements or dominant cognitive cues in each of the trade marks.[9] It is also important to take care and not too readily characterise elements as being the essential or distinguishing feature.[10] The mere fact that the trade marks have words in common does not make those words the essential or distinguishing feature.

   [9] Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd [2017] FCAFC 83 [52].

   [10] Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, [100].

5. In my assessment, the essential feature of the Opponent’s Trade Mark is the composite phrase ‘Black Friday’. Notably, the Trade Marks do not contain this composite phrase. The positioning of the word ‘Tag’ in the Trade Marks is significant as it is between ‘Black’ and ‘Friday’; the effect being that the composite phrase ‘Black Friday’ is never formed. As pointed out by the Applicant, in the Trade Marks the word ‘Black’ is an adjective that modifies the noun ‘Tag’ rather than modifying the noun ‘Friday’ as it does in the Opponent’s Trade Mark. The essential feature of the Trade Marks is the phrase ‘Black Tag Friday’.  

6. On a side by side comparison I do not think that the word ‘Tag’ will be overlooked and its positioning results in the Trade Marks and the Opponent’s Trade Mark having different essential features. In my opinion, neither of the Trade Marks are substantially identical with the Opponent’s Trade Mark.

Deceptively Similar

1. Section 10 of the Act defines a ‘deceptively similar’ trade mark as:

   [a] trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.

2. It is necessary to show a ‘real and tangible danger’ of confusion occurring between the relevant trade marks.[11] In Shell, Windeyer J provided the following insights on deceptive similarity:

   The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity.

   Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff’s mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant’s [trade mark].[12]

   [11] Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020, [43].

   [12] Shell (n 7) [13].

3. As such, I must estimate the impression that a person of ordinary intelligence and memory would have of the Trade Marks and of the Opponent’s Trade Mark. In doing so it is useful to note:

   that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole.[13]

   [13] de Cordova v Vick Chemical Co (1951) 68 RPC 103, 106.

4. In my opinion the Trade Marks are not deceptively similar to the Opponent’s Trade Mark. Although each of the trade marks contain the words ‘Black’ and ‘Friday’, the trade marks convey different ideas and concepts. The impression based on recollection of the Opponent’s Trade Mark is that of the known expression ‘Black Friday’, the meaning(s) of which would be familiar to most users of the English language. I’m inclined to think that a person of ordinary intelligence and memory would naturally recall the expression rather than the individual words ‘Black’ and ‘Friday’. As such the impression carried away by the consumer is that of a Friday which falls on the 13^th of the month or, given the global nature of internet commerce, the Friday following Thanksgiving which is typically the busiest shopping day of the year.[14] No such impression is created by the Trade Marks.  

   [14] Slack-Smith Declaration 3, [22].

5. The addition and positioning of the word ‘Tag’ in the Trade Marks results in a substantial difference in meaning to that of the Opponent’s Trade Mark. In the context of the relevant services, the Trade Marks convey the impression of goods bearing black tags on a Friday. This impression is reinforced by the graphical representation of trade mark number 1875387 which arguably has some likeness to a black tag.

6. In reaching my conclusion I have considered the case authorities put forward by both parties. The Opponent relies on Sports Café Ltd v Registrar of Trade Marks[15] and Sushi Train (Australia) Pty Ltd v RGR Norman Pty Ltd.[16] In those matters, the relevant composite phrase (SPORTS CAFÉ and SUSHI TRAIN) was contained in each of the trade marks being compared, unlike the current matters where the composite phrase ‘Black Friday’ is not contained in the Trade Marks. Ultimately, I find the Applicant’s references to Health World Limited v Shin-Sun Australia Pty Ltd[17] and Australian Postal Corporation v Digital Post Australia[18] to be more analogous and persuasive.

   [15] [1998] FCA 1614.

   [16] [2016] ATMO 76.

   [17] [2008] FCA 100.

   [18] [2013] FCAFC 153.

7. The s 44 ground of opposition has not been established.

Section 60

1. Section 60 of the Act provides:

   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 SGPs the Opponent’s Trade Mark is nominated as the basis of this ground of opposition. To establish this ground the Opponent must demonstrate the existence of a reputation in the Opponent’s Trade Mark in Australia at the Relevant Date. The Opponent must then establish that because of the aforesaid reputation there is a real and tangible danger that use of the Trade Marks would be likely to deceive or cause confusion.

3. For the purposes of s 60 ‘reputation’ is the recognition of the trade mark by the public generally.[19] Reputation cannot be assumed; it must be established as a matter of fact by the Opponent.[20] Both parties duly acknowledge that:

   it is commonplace to infer reputation from a high volume of sales, together with substantial expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product….public awareness of and regard for a mark tends to correlate with appreciation of the products which that mark is associated, as evidence by sales volume, amongst other things.[21]

   [19] McCormick & Company Inc v McCormick [2000] FCA 1335, [81].

   [20] ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159, [77].

   [21] McCormick & Company Inc v McCormick (n 19) [86].

4. The Opponent asserts that its evidence shows ‘substantial promotion and sales of the Factory X Products and Factory X Services…in Australia by reference to the [Opponent’s Trade Mark] and that this use has been ongoing since at least 2007’.[22] In my opinion, this assertion is not substantiated by the evidence before me.  

   [22] Opponent’s Submissions 20, [52].

5. From the outset, I note that the evidence before me shows the Opponent using various trade marks which incorporate the words ‘Black Friday’. For the purposes of s 60 each of the trade marks is a separate mark.[23] In its evidence, the Opponent does not differentiate between the different Black Friday trade marks, rather it references the ‘Black Friday Brand’. I will do likewise bearing in mind that this encompasses all of the trade marks incorporating the words ‘Black Friday’ not just the Opponent’s Trade Mark.

   [23] Qantas Airways Limited v Edwards [2016] FCA 729, [160].

6. The Opponent has provided revenue figures for ‘Black Friday branded products’ for the financial years ending 30 June 2008 to 30 June 2017. The revenue peaked in the financial years ending 30 June 2011 and 30 June 2012 and I would characterise these figures as not insignificant. From the financial year ending 30 June 2014 the revenue declines and decreases dramatically in the financial years ending 30 June 2015, 2016 and 2017. These figures are extremely modest and correlate with Mr. Heeney’s statement that in January 2014 he decided not to dedicate significant focus to the ‘Black Friday Brand’ and it wasn’t until late 2016 that significant focus was placed back on the ‘Black Friday Brand’.[24] Despite refocusing on the brand in late 2016 this is not reflected in the revenue figures until after the financial year ending 30 June 2017 (only three months of which would be before the Relevant Date). The timing of the ramping up and down of the ‘Black Friday Brand’ is important as the reputation is assessed at the priority date of the Trade Mark.[25]  Here, the revenue figures are extremely modest in the three financial years immediately before the Relevant Date.

   [24] Heeney Declaration [13].

   [25] Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (n 9) [21].

7. The Opponent has also indicated the amount spent on advertising and promoting the ‘Black Friday Brand’ for the financial years ending 30 June 2008 to 30 June 2017. Over that period, the expenditure has been modest and extremely modest in the three financial years before the Relevant Date. I acknowledge that many brands are now promoted via social media at little to no cost and as such marketing expenditure is not always reflective of the level of promotion that a brand has had.

8. In these matters, the Opponent claims to have promoted its brand on Facebook® and Twitter®. However, I note that Ms. Brooks declares that the last Tweet® was on 17 September 2013 and the dates on the print-outs from the relevant Facebook® page are from October 2008 to March 2013. At best, the brand was promoted on social media some four years prior to the Relevant Date. Furthermore, the Opponent has not provided me with any means to quantify the exposure that the relevant social media pages enjoyed before the Relevant Date. The same deficiency applies to the Black Friday Bible and look books. Ms. Brooks states that the Black Friday look books were available for consumers to collect at the front of stores however there is no indication of the number of stores that the look books were available in or the number of look books that were printed or circulated. Similarly, the Opponent points to three websites and has provided printouts from before the Relevant Date which show the ‘Black Friday Brand’ however no indication has been provided as to how many times the relevant pages were accessed. There is simply insufficient information for me to quantify the number of consumers that were exposed to the Black Friday Bible, the look books or the websites.

1. Considering all of the above, I am not satisfied, as a matter of fact, that at the Relevant Date, the Opponent’s Trade Mark had the reputation contemplated by s 60 of the Act. Accordingly, the s 60 ground of opposition has not been established.

Section 42(b)

1. Section 42(b) of the Act relevantly provides:

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

   …

   (b) its use would be contrary to law.

2. The Opponent must satisfy the Registrar that use of the Trade Marks would not could be contrary to law.[26] As observed by Rangiah J in Primary Health Care Limited v Commonwealth of Australia:

   It is not enough for a party opposition registration to show that s 18 of the ACL or s 52 of the TPA [Trade Practices Act 1974] might be contravened. The opponent must prove, on the balance of probabilities, that the provision would be contravened by use of the trade mark.[27]

   [26] Advantage-Rent-A-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683, [28].

   [27] [2017] FCAFC 174, [411].

3. The Opponent submits that use of the Trade Marks would be contrary to ss 18 and 29 of the Australian Consumer Law (‘ACL’) which forms Schedule 2 to the Competition and Consumer Act 2010. The Opponent also asserts that use of the Trade Marks amounts to the tort of passing off.

4. Section 18 of the ACL concerns conduct or representations that have, or are likely, to mislead or deceive. Section 29 of the ACL concerns representations that are false or misleading.

5. I have found that the Opponent has not demonstrated a reputation in its registered trade mark sufficient to enliven s 60 of the Act. It follows that it is unlikely that use of the Trade Marks will amount to misleading or deceptive conduct or representations under the ACL because ‘for the public to be misled or deceived…there must be in the minds of the relevant public some established truth against which the notion of misleading or deceptive conduct can be measured’.[28] Similarly, without sufficient reputation having been demonstrated in the Opponent’s Trade Mark, the use of the Trade Marks would not falsely represent to a consumer that the Applicant’s services have the sponsorship or approval of the Opponent. This is even more so given the different impressions created by each of the trade marks.  

   [28] Dairy Vale Metro Co-op Ltd v Brownes Dairy Ltd [1981] FCA 63 [42].

6. Where use of a trade mark does not contravene s 18 of the ACL neither will it amount to the tort of passing off. The relationship between passing off and s 52 of the now repealed Trade Practices Act 1974 (‘TPA’) was addressed in Re Equity Access Pty Ltd v Westpac Banking Corporation:

   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 the name by another, failure to succeed under s 52 or s 53 will invariably mean that proceedings for passing off would likewise fail.[29]

   [29] [1989] FCA 506 [40].

7. Section 18 of the ACL is the equivalent of s 52 of the TPA.[30] The above comments are equally applicable to the relationship between s 18 of the ACL and the tort of passing off.

   [30] Primary Health Care Limited v Commonwealth of Australia (n 27) [410].

8. As I have found that s 18 of the ACL has not been contravened, it follows that use of the Trade Marks does not amount to passing off.

9. The Opponent has not satisfied me that use of the Trade Marks would not could be contrary to law. As such the s 42(b) ground of opposition has not been established.

Decision

1. Section 55(1) of the Act provides:

   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 the ground on which the application             was opposed has been established.

2. The Opponent has not established a ground of opposition.

3. Accordingly trade mark application numbers 1875373 and 1875387 may proceed to registration one month from the date of this decision.

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

Costs

1. The Applicant sought costs. As the successful party, the Applicant is so entitled.

2. In respect of trade mark application number 1875373 I award costs against the Opponent as per s 221 of the Act in the amounts set out in Schedule 8 of the Trade Marks Regulations 1995.

3. In respect of trade mark application number 1875387 I award reduced costs against the Opponent in the same manner as indicated in Hume Industries (Malaysia) Berhard v James Hardie & Coy Pty Ltd.[31]

Katrina Brown

Hearing Officer

Oppositions & Hearings

Trade Marks & Designs

8 October 2019

[31] [2001] ATMO 78.

Annexure 1

Class 35: 

Retail information services; retailing, wholesaling and distribution (including online) of furniture, electrical appliances, plumbing goods, building goods, hardware, homewares, home improvement goods, commercial and home decoration items, floor coverings, textiles, curtains, garden appliances, hand tools, electrical equipment, computers, computer accessories, computer parts, computer software, gaming consoles, games, recording discs, apparatus for recording, transmission or reproduction of sound, data or images, apparatus for lighting, programmable lighting systems, heating, steam generating, cooking, refrigerating and ventilating, other business, commercial and household appliances and baby nursery equipment, telecommunications and communications goods, home theatre goods, audio goods, video goods, manchester, photographic, cinematographic, video and digital imaging equipment, products, accessories and instruments, electrical and optical apparatus and instruments used in photographic, digital imaging, magnification and processing fields, parts and accessories for photographic, cinematographic, digital imaging, electric, video and other visual imaging apparatus, including cameras, flashguns, tripods, enlargers, developers, lenses, camera bags, adapters, recorders, batteries, video cassettes, compact discs, photographic film, digital data processing, accessories, kitchen, bathroom and laundry equipment, fixtures and fittings including cabinets, sinks, stoves, ovens, dishwashers, microwaves, showers, baths, spas, vanity units, mirrors, photographic film (unexposed), household cleaning products, soap, washing powder, candles and wicks for lighting, tiles (metallic), bathroom tiles (metallic), bench tops (metallic), doors, doors (metallic), drawers, drawers (metallic), flooring (metal), floors (metal),garden appliances (metal), kitchen tiles (metallic), small Items of metal hardware, safes, wire baskets, blenders, can opener, dishwasher, tumble dryer, garden appliances (electric), hand tools (electric), juicer, washing machine, power tools (electric), vacuum cleaners, bottle opener (hand operated), can opener (hand operated, nonelectric), cutlery, egg slicer, garden appliances (hand operated), hand tools (non-electric), pizza cutter, adapters, apparatus for printing, developing and processing photographic film, apparatus for printing, developing and processing photographs, audio components, audio goods, multi room audio systems audio systems, baby nursery equipment (electronic), batteries, binoculars, blood pressure monitoring machines for home use, diabetic monitoring machines for home use, blu-ray discs, blu-ray players and recorders including portable cables cameras, camera cassettes, cases made especially for photographic apparatus and instruments, CCTV systems, imaging equipment, clock radios, commercial alarm systems, compact discs, compact disc players and recorders including portable, compact disc racks, video tape storage units, computer accessories, computer network apparatus and installations, computer parts, computer software including anti-virus software, computer game software, programs, cartridges, programs downloadable from the Internet, computers, communications equipment, digital cameras, digital data processing accessories, digital imaging equipment, digital picture frames, digital radios, digital signage, digital video cameras, digital video discs (DVD), DVD players and recorders including portable, downloadable ring tones for mobile phones, downloadable music files, earphones, electric devices for attracting and killing insects, electronic listening devices, electronic baby monitoring devices, enlargers, facsimile machines, flashguns, computer games, GPS navigation system, hard drives, hardware, headphones, hi fi system, home alarm system, home theatre goods, home theatre systems, household and domestic electric apparatus, jukeboxes, computer keyboards, laptops, monitors, LCD monitors, lenses, mice, micro systems, electronic mini systems, mobile telephones, mouse pads, modems, MP3 players and recorders, multimedia accessories, multimedia apparatus and instruments, navigation apparatus and instruments, net books, notebooks, networking and wireless products, internet related products, personal organisers, personal stereos, photocopiers, photographic developers, photographic imaging equipment, power cables, printers, projector screens, projectors, radios, recorders, recording discs, remote controls, weighing scales, scanners, electric security systems, domestic security systems, small audio apparatus and instruments, speakers, set top boxes electronic storage devices, sound systems, sunglasses, tablet computers, tape recorders and players, telecom systems, telephones and telephone apparatus, televisions, tripods, umbrellas, USB flash drives, video cameras, video cassettes, video goods, video and camcorder tapes and cassettes, video imaging equipment, video players, wall mounts for televisions, web cameras, whiteboards, wireless apparatus and instruments, blood pressure monitoring machines (medical, diabetic monitoring machines (medical), electric blankets (medical), foot massager, air conditioning' units, bath cubicles, bath installations, bathroom exhaust fans, bathroom fittings and fixtures, bathroom accessories, bathroom renovations, bathroom heating, bathroom lighting, bathroom sinks, baths, barbeques, bidets, chandeliers, cisterns, coffee machines (electric), cooking apparatus, cooktops, deep fryer (electric), display cabinets (cooling, refrigerating), domestic and commercial hot water systems, dryers (heat drying), drying apparatus, ducted air conditioners, egg cooker, electric blankets, external security lighting systems, fans, floor lamps, freezers, frying pan (electric), grills, hair dryer, hair curler, hair straightener, personal care appliances, heated towel rails, heaters, heating apparatus, iron, kettle (electric), lanterns, lighting apparatus, lighting systems, lighting, microwaves, ovens, plumbing fittings, range hoods, refrigerating apparatus, rice cooker, sanitary apparatus, shower bases, shower doors, shower frames, shower heads, shower modules, shower recesses, shower screens, shower systems and installations, shower walls, showers, sink units (sanitary ware), sinks, solar hot water system, spa bath, baths, spas, steamer (garment), steam generating apparatus, stoves, table lamps, tap heads, tap ware, taps, toaster, toilet suite, toilets, tubs, urinals, vanities (with basin), vanity basins, vanity units (with basin), ventilating apparatus, water cooler, water filter jug, water supply apparatus, whitegoods, wine storage cabinets and fridges (coolers), wok (electric), water features (ornamental), water fountains, wheelbarrows, clocks, keyboards, tripods for musical instruments, photo albums, albums for photographs and albums for pictures, albums, artists materials, artworks, books, blackboards, canvas art, canvases, artists canvas, canvas boards, canvas for painting, stretch canvas for painting, gift cards, instruction guides sold with computer software, Instruction manuals (handbooks) sold with computer software, notebooks, office requisites (except furniture), paper shredders, shredders for office use, photo books, prints, wall art, wall stickers, whiteboards (non- electronic), writing and drawing implements, hoses, camera bags, items made of leather, travelling bags, travelling goods, umbrellas, tiles (non-metallic), kitchen tiling (non-metallic), bench tops (non-metallic fitted), doors (non-metallic), drawers (non-metallic), floor coverings (ceramic, wood), flooring (non-metallic), floors (non- metallic), laminate flooring kit (non-metallic), timber flooring, timber effect flooring, vinyl flooring, shelf units (non-metallic), shelving (non-metallic), accent chairs, bar stools, bathroom fittings and fixtures (furniture), bathroom furniture, bathroom mirrors, baskets (wicker), beds, bedroom furniture, bedding, bins (non- metallic), book cases, buffet, cabinets, chairs, chest of drawers, children's bedroom furniture, children's furniture, coffee tables, computer furniture, console table, credenza, cupboard, cushion, daybed, desk, dining furniture, dining room furniture, dining suites, display units, display cabinets (furniture), doors, drawers, entertainment units (furniture), filing cabinets, furniture units for kitchens, glass fronted shelved furniture, hooks, kitchen cabinets, kitchen furniture, kitchen fittings and fixtures, kitchen renovations, lamp tables, clothes racks (furniture), linen cabinet, lounges lounge room furniture, lounge suites massage chairs, mattresses and ensembles, mirrors, modular lounges, occasional furniture, office furniture, ottoman, outdoor furniture, modular outdoor kitchen centres, picture frames, pillows, recliners, shaving cabinet, shelves (furniture), shelving unit(furniture), sink units (kitchen furniture), sofas, sofa beds, storage boxes (furniture), storage devices (furniture), sun lounges, tables, television furniture, tiles, vanities (furniture), vanity units (furniture), wardrobes, wine storage cabinets and racks (furniture), plastic bathroom fittings, baskets (for household use), pedal bins, dustbins, business, conference and lecture accessories, bins for household refuse, blender (non-electric), bottle openers, broom, bucket, candlesticks, ceramics, ornaments, coasters (not of paper or linen), coffee machines (nonelectric), cookware, crockery, deep fryer (non-electric), dinnerware, drink ware, serve ware, kitchen utensils, food preparation devices, small kitchen appliances, small household appliances, insulated containers, frying pan, household utensils and containers, ironing board, jugs, juicer (hand operated), kettle (non-electric), clothes racks for drying, make up accessories, mugs, napkin holders, oven gloves and mitts, paper weight, party ware, pepper mills (hand operated), salt dispenser, serve ware (bowls, dishes, pots), storage boxes (for household use), storage devices (for household use), trays, vases, wok (non-electric), soap canisters, tents, awnings, textile and textile goods, bed covers, table covers, coasters, furniture covers of textile, furniture covers of plastic fabric, cushions, covers for cushions, duvets, linen, household linen, bed linen, bathroom linen, place mats, mattress covers, napkins, pillow cases, table linen, towels, upholstery fabrics, blankets and throws, mattress protectors, mattress toppers, quilts, sheets, shower curtains, tea towels, throws, clothing including bath robes, aprons, artificial flowers and foliage, carpets, rugs, mats and matting, linoleum and other materials for covering existing floors, wall hangings (non-textile), wall paper, bathroom tiles, bathroom tiles (carpet or cork), floor coverings, flooring (other materials for covering existing floors), kitchen tiling (carpet or cork), linoleum (for covering existing floors), mats, tiles (carpet or cork), vinyl, toys, Christmas decorations, Christmas trees (artificial), gifts, games, sporting goods, dried flowers, live Christmas trees, promotional goods, photo printing, photo gifting, retail, wholesale and distribution of parts and accessories relating to the aforementioned goods; services relating to the presentation and display for sale of the aforementioned goods and provision of retail advice to purchasers in relation to the aforementioned goods; all aforementioned services by electronic means including via global computer networks; franchising services (group advertising, group purchasing); retailing through franchise operations; business advice and consultancy relating to franchising; business advice, business advisory services, business assistance and business management services relating to franchising; business services, including business management, business administration and business information services excluding any services relating to aged care; business services, including business management, business contract management, business project management, business administration, business consultancy, business advisory and business information services; business administration, business information, business management and business advisory services in respect of property, developments, real estate, building, construction and property development; business management of all types of construction; the service of rendering to others technical assistance in the management and operation of retail stores; management services in this class including contract management and project management services excluding any services relating to aged care; rental of office machines and equipment; bundling of kitchens and appliances in the form of retail or wholesale of complete kitchen packages; advertising and promotional services including promoting and advertising the goods and services of others; advertising and promotional services including these services in relation to kitchen and bathroom goods and services and related goods and services; distribution and dissemination of advertising and promotional material; organisation, operation, management and supervision of customer loyalty programmes; all the aforementioned services including by electronic means and including via global computer networks