Fast Future Brands Pty Ltd v Vida Glow Hold Co Pty Limited

[2024] ATMO 52

TRADE MARKS ACT 1995

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

Re:Opposition by Fast Future Brands Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by Vida Glow Hold Co Pty Limited for partial removal of trade mark numbers 1809547 – Vg. EDITION (Figurative) and 1809548 – Vg. EDITION – both in classes 3, 9, 14, 18, 25, 35 and in the name of Fast Future Brands Pty Ltd

Delegate:

Nicholas Smith

Representation:

Opponent: Shauna Ross of Counsel, instructed by Legalvision ILP Pty Ltd

Applicant: Gadens Lawyers

Decision:

2024 ATMO 52

Trade Marks Act 1995 (Cth) - section 96 opposition: ss 92(4)(a) and (b) application for partial removal - Removal Opponent’s evidence does not show use of the Trade Marks for the relevant goods during the relevant period or obstacle to use – exercise of Registrar’s discretion not appropriate – Trade Marks to be removed from the Register for some of the goods for which they are registered

Background

1. This decision is pursuant to an application made on 23 November 2021 under ss 92(4)(a) and (b) of the Trade Marks Act 1995 (Cth) (‘Act’) by Vida Glow Hold Co Pty Limited (‘Applicant’) for partial removal of the trade marks (collectively

   
   

   ‘Trade Marks’) detailed below from the Register of Trade Marks. 

Registration No.

1809547

Lodgement date

16 November 2016

Goods and Services

Class 3: Perfumery; Cosmetics; Hair products; Toiletries

Class 9: Frames for lenses; Lenses for sunglasses

Class 14: Imitation jewellery; Jewellery; Jewellery cases; Pins (jewellery); Rings (jewellery); Trinkets (jewellery); Wristlets (jewellery); Watches

Class 18: Bags made of imitation leather; Bags made of leather; Handbags made of imitation leather; Handbags made of leather; Imitation leather; Leather; Leather purses; Leather wallets

Class 25: Apparel (clothing, footwear, headgear); Clothing; Ladies clothing

Class 35: Retail clothing shop services; Retail services

Owner

Fast Future Brands Pty Ltd

Trade Mark

(‘Device Mark’)

Registration No.

1809548

Lodgement date

16 November 2016

Goods and Services

Class 3: Perfumery; Cosmetics; Hair products; Toiletries

Class 9: Frames for lenses; Lenses for sunglasses

Class 14: Imitation jewellery; Jewellery; Jewellery cases; Pins (jewellery); Rings (jewellery); Trinkets (jewellery); Wristlets (jewellery); Watches

Class 18: Bags made of leather; Boxes made of leather; Handbags made of imitation leather; Handbags made of leather; Imitation leather; Leather; Leather purses; Leather wallets

Class 25: Apparel (clothing, footwear, headgear); Clothing; Ladies clothing

Class 35: Retail clothing shop services; Retail services

Owner

Fast Future Brands Pty Ltd

Trade Mark

Vg. EDITION

(‘Word Mark’)

2.     The goods that are sought to be removed from the above specifications are the class 3 goods, namely ‘Perfumery; Cosmetics; Hair products; Toiletries’ (‘Removed Goods’). If the application for removal is successful, the Trade Marks will remain registered for the Goods and services for which the respective marks are registered other than the Removed Goods.

3. Unless otherwise indicated, any references to sections or regulations in this decision are references to sections or regulations of the Act or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

4.  Fast Future Brands Pty Ltd (‘Opponent’) has opposed the application to remove the Trade Marks, filing a Notice of Intention to Oppose removal on 24 December 2021 and a Statement of Grounds and Particulars (‘SGP’) on 18 January 2022.  The Applicant filed a Notice of Intention to Defend on 31 March 2022.

1. The following evidence was filed in this matter:

Declarant and Position	Date	Annexures or Exhibits
Evidence in support
Beom Seok Park, General Manager of the Opponent (‘Park declaration’)	1 July 2022	A to P
Evidence in answer
N/A
Evidence in reply
N/A

6.  Once the time allowed for filing evidence had ended, the parties were given an opportunity to request an oral hearing or a hearing by written submissions.  On 19 October 2022 the Applicant requested a hearing by submissions and paid the appropriate fee.  The matter was set down for a hearing on 1 December 2023.  In line with usual practice, a letter was sent to the parties on 5 October 2023 which contained a schedule for the provision of written summaries of submissions to be filed prior to the hearing (later updated by this office).  The Opponent filed written submissions on 24 November 2023 (‘Opponent’s Submissions’).  The Applicant filed written submissions on 29 November 2023 (‘Applicant’s Submissions’).

7.  I am a delegate of the Registrar and the matter has been allocated to me to decide, which I have done, on the basis of the following relevant material and the evidence listed earlier in this decision:

·The Application for Removal;

·The Notice of Intention to Oppose and SGP;

·The Opponent’s Submissions; and

·The Applicant’s Submissions. 

The Relevant Provisions

8. Part 9 of the Act deals with removal of trade marks from the Register on account of non-use. In respect of this matter s 92 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;

(b)that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:

(i)used the trade mark in Australia; or

(ii)used the trade mark in good faith in Australia;

in relation to the goods and/or services to which the application relates.

Note 1:For file and month see section 6.

Note 2:If non‑use of a trade mark has been established in a particular place or export market, then instead of the trade mark being removed from the Register, conditions or limitations may be imposed under section 102 on the registration of the trade mark so that its registration does not extend to that place or export market.

9. Under s 92(4)(b) the relevant period during which the Opponent must establish use of the Trade Marks is the three year period ending on 23 October 2021 (‘relevant period’).

10. I note that an application under s 92(4)(b) may not be made before a period of five years has passed from the filing date of the application,[1] and I confirm that five years since filing the application have in fact passed.

[1] Per s 93(2) prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1, pt 3 as applies in the present matter. The updated s 93(2) applies to trade marks filed from 24 February 2019 onwards.

11.     The onus of rebutting an allegation of non-use lies with the Opponent. This onus is articulated in s 100 which provides, relevantly to this matter:

100  Burden on opponent to establish use of trade mark etc.

(1) In any proceedings relating to an opposed application, it is for the opponent to rebut:

(a) any allegation made under paragraph 92(4)(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 opposed application relates ( relevant goods and/or services ); or
(b)  any allegation made under paragraph 92(4)(a) that the trade mark has not, at any time before the period of one month ending on the day on which the opposed application was filed, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services; or
(c) any allegation made under paragraph 92(4)(b) that the trade mark has not, at any time during the period of 3 years ending one month before the day on which the opposed application was filed, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services.

[…]

(3) For the purposes of paragraph 1(c), the opponent is taken to have rebutted the allegation that the trade mark has not, at any time during the period referred to in that paragraph, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services if:

(a) the opponent has established that the trade mark, or the trade mark with additions or alterations not substantially affecting its identity, was used in good faith by its registered owner in relation to those goods or services during that period; or
 (b)  in a case where the trade mark has been assigned but a record of the assignment has not been entered in the Register:

(i)  the opponent has established that the trade mark, or the trade mark with additions or alterations not substantially affecting its identity, was used in good faith by the assignee of the trade mark in relation to those goods or services during that period and that that use was in accordance with the terms of the assignment; and
(ii)  the Registrar or the court is of the opinion that it is reasonable, having regard to all the circumstances of the case, to treat the use of the trade mark by the assignee during that period as having been a use of the trade mark in relation to those goods or services by the registered owner; or

(c) the opponent has established that the trade mark was not used by its registered owner in relation to those goods and/or services during that period because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period.

12.     I proceed on the basis that the standard of proof is the ordinary civil standard being on the balance of probabilities.[2]

[2] Pfizer Products Inc. v Karam [2006] FCA 1663 (Gyles J) and more recently: 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.

13.     In accordance with s 101 I may decide to remove the Trade Marks from the Register for all or some of the goods identified in the application for removal, or if satisfied it is reasonable to do so, decide not to remove the Trade Marks even if the grounds under which the application for removal was made are established.

14. I further note that a single bona fide use of the Trade Marks in the course of trade during the relevant period may be sufficient to rebut the allegation under s 92(4)(b),[3] but if a single act of use is relied upon then it should be established by ‘if not conclusive proof, at any rate overwhelmingly convincing proof’.[4] Use of the Trade Marks by an authorised user (as defined by s 8) is taken to be use of the Trade Marks by the Opponent.[5] 

15.     The principles defining when a trade mark has been used were recently summarised in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd, in which the High Court noted the following:

Use of a trade mark in relation to goods means use of a trade mark upon, or in physical or other relation to, those goods, and so can include use of the mark on product packaging or marketing such as on a website. There is a distinction, although not always easy to apply, between the use of a sign in relation to goods and the use of a sign as a trade mark. A trade mark is a sign used, or intended to be used, to distinguish goods dealt with by one trader from goods dealt with by other traders; that is, as a badge of origin to indicate a connection between the goods and the user of the mark.

Whether a sign has been "use[d] as a trade mark" is assessed objectively without reference to the subjective trading intentions of the user. As the meaning of a sign, such as a word, varies with the context in which the sign is used, the objective purpose and nature of use are assessed by reference to context. That context includes the relevant trade, the way in which the words have been displayed, and how the words would present themselves to persons who read them and form a view about what they connote. A well known example where the use was not "as a trade mark" was in Irving's Yeast-Vite Ltd v Horsenail, where the phrase "Yeast tablets a substitute for 'Yeast-Vite'" was held to be merely descriptive and not a use of "Yeast-Vite" as a trade mark. Therefore, it did not contravene the YEAST-VITE mark.

The existence of a descriptive element or purpose does not necessarily preclude the sign being used as a trade mark. Where there are several purposes for the use of the sign, if one purpose is to distinguish the goods provided in the course of trade that will be sufficient to establish use as a trade mark. Where there are several words or signs used in combination, the existence of a clear dominant "brand" is relevant to the assessment of what would be taken to be the effect of the balance of the label, but does not mean another part of the label cannot also act to distinguish the goods.[6]

Discussion

[3] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).

[4] Nodoz Trade Mark (1962) RPC 1, 7 (Wilberforce J).

[5] Act s 7(3).

[6] Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [23]-[25] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) (citations omitted).

1. Sections 92(4)(a) and 92(4)(b) provide distinct and alternative grounds for removal. Because of the specifics of these provisions paragraph (a) is considered to effectively merge with paragraph (b) once a trade mark has been registered for five[7] years.[8] As the Trade Marks had been registered for more than five years as at the date of the application I need only consider the application for removal under s 92(4)(b) in this case. Therefore, to successfully oppose the application the Opponent must establish that it has used the Trade Marks (or a substantially identical trade mark[9]) pursuant to s 100 (that there were circumstances that were an obstacle to use in the relevant period (per s 100(3)(c)). 

   [7] Or three years for trade marks filed from 24 February 2019 onwards see changes made in the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (sch 1, pt 3).

   [8] M Davison, I Horak Shanahan’s Australian Law of Trade Marks and Passing Off 6th edition, 2016 Thomson Reuters, [70.510].

   [9] Act s 100(3)(a) and discussed in AgCare Biotech Pty Ltd v Crop Smart Pty Ltd [2009] ATMO 41, [10]-[21] (Hearing Officer Kirov).

2. If the Opponent fails to establish such use or an obstacle to use, I have discretion under s 101(3) to decide that the Trade Marks (or one or other) should not be removed from the Register in respect of some or all of the Removed Goods.

   Use of the Trade Marks in the relevant period

3. The Opponent’s evidence in this matter consists of a declaration by its General Manager, Beom Seok Park.  The Park declaration states that the Opponent operates a series of fashion stores under various brands that utilise various elements around the term ‘valley girl’ including VG and VALLEY GIRL.  It has registered various trade marks reflecting the brand elements, including the Trade Marks, in Australia.

4. At paragraph 13 of the Park declaration, the declarant states that the Opponent ‘has only ever provided or retailed cosmetics, clothing, bags, eyewear, jewellery or stationery’.  I have treated this as a concession that the Opponent has never used the Trade Marks with respect to the Removed Goods other than cosmetics (nor does it intend to use the Trade Marks for those goods).

5. The declarant states that the Opponent is commonly referred to as VG, being an abbreviation of ‘Valleygirl’ and this branding is reflected in its stores and marketing material.  Furthermore, the declarant asserts that the word ‘edition’ in fashion is a generic term and the element ‘VG’ is the dominant element in both the Trade Marks.  The Opponent continues to provide and intends to continue to provide cosmetics, clothing, bags, eyewear, jewellery or stationery under the Trade Marks and has developed a significant reputation in its brand.

6. In reviewing the annexures to the Park declaration I reach the following conclusions:

   §  The Opponent operates a series of clothing stores under the ‘Valleygirl’ brand including retailing clothing under that brand.  The Opponent has engaged in extensive promotion featuring this brand.  Part of its branding includes the use of the letters VG though this is very much subordinate to the use of the Valleygirl brand.

   §  The Opponent provides photos of cosmetics bearing a mark consisting of the letters VG surrounded by a circle as well as invoices for the supply of these cosmetics to the Opponent in the relevant period.

   §  The Opponent provides limited examples of use of the Word Mark on clothing mostly in respect of second-hand sales on Ebay.

7. By reason of the concession in paragraph 13 of the Park declaration and, in the absence of any other evidence, I am not satisfied that there has been any use for any of the Removed Goods other than cosmetics.  With respect to cosmetics the Opponent submits that its use of a mark consisting of the letters VG and a circle is use of the Trade Marks while the Applicant submits that such use is not use of the Trade Marks as the mark used contains additions and alterations substantially affecting the identity of the Trade Marks.

8. When considering ‘substantial identity’ in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (‘Shell’), Windeyer J said:

   In considering whether marks are substantially identical 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.[10]

9. I accept the Applicant’s submissions on this point and do not consider that either of the Trade Marks are substantially identical to the mark used by the Opponent on its cosmetic products.  Both the VG element and the word ‘edition’ are essential features of each of the Trade Marks and absent the other element the mark used is not substantially identical to the Trade Marks.  In particular, the word ‘edition’ is not descriptive of cosmetics and its absence impacts on the visual, aural and conceptual impression provided by the Trade Marks.  The fact that an addition may be a generic term with a common dictionary meaning does not render it meaningless for the purpose of considering whether a mark is substantially identical.  In addition, the mark used by the Opponent on its cosmetic products contained a circular device not replicated in the Trade Marks and lacked the full stop element in each of the Trade Marks.  In comparing the Trade Marks with the mark used on cosmetics I do not consider that total impression of resemblance emerges from the comparison.

   [10] [1963] HCA 66, [12].

1. Given my conclusions above I am not satisfied that there has been any use of the Trade Marks for the Removed Goods either during or outside the relevant period.

   Obstacles to use

   26.     The Opponent does not formally submit that there have been any matters that amount to an obstacle to the use of the Trade Marks for the Removed Goods in the relevant period, pursuant to s 100(3)(c) and, in the interests of completeness, I note that I have been unable to identify any such obstacles.  As there is no obstacle to use of the Trade Marks, it is therefore necessary to consider whether I should exercise the discretion to allow the Trade Marks to remain on the Register for any of the Removed Goods.

   Registrar’s Discretion

   27.     As noted in Shanahan’s Australian Law of Trade Marks and Passing Off , the policy of the Act is to facilitate the removal of an unused trade mark, and the public interest in the integrity of the Register will generally demand the removal of an unused trade mark.[11]  In PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd, the Full Court of the Federal Court provided the following observations regarding the discretion under s 101(3):

   [11] M Davison, I Horak Shanahan’s Australian Law of Trade Marks and Passing Off online edition, 2022 Thomson Reuters, [70.2505].

   The following propositions are relevant to the exercise of this discretion:

   (1) It is broad and is unfettered in the sense that there are no express limits on it. It is to be understood as limited only by the subject-matter, scope and purpose of the legislation and, in particular, by the subject-matter scope and purpose of Part 9 of the Trade Marks Act.

   (2) The scope and purpose of the Trade Marks Act strikes a balance between various disparate interests. On the one hand there is the interest of consumers in recognising a trade mark as a badge of origin of goods or services and in avoiding deception or confusion as to that origin. On the other is the interest of traders, both in protecting their goodwill through the creation of a statutory species of property protected by the action against infringement, and in turning the property to valuable account by licensing or assignment. …

   (3) The particular purpose of Part 9, within which s 101 falls, is to provide for the removal of unused trade marks from the Register. It is designed to protect the integrity of the Register and in that way the interests of consumers. At the same time, it seeks to accommodate, where reasonable to do so, the interests of registered trade mark owners. Accordingly, the Court must be positively satisfied that it is reasonable that the trade mark should not be removed. The onus in this respect lies on the trade mark owner to persuade the Court that it is reasonable to exercise the discretion in favour of the owner. …

   (4) The discretion in s 101(3) is expressed in the present tense. It requires consideration of whether, at the time that the Court is called upon to make its decision, it is reasonable not to remove the mark.

   (5) The range of factors considered in the exercise of the discretion has included whether or not:

   (a) there has been abandonment of the mark;

   (b) the registered proprietor of the mark still has a residual reputation in the mark;

   (c) there have been sales by the registered owner of the mark of the goods for which removal was sought since the relevant period ended;

   (d) the applicant for removal had entered the market in knowledge of the registered mark;

   (e) the registered proprietors were aware of the applicant’s sales under the mark;

   (f) A further factor, explicitly noted in s 101(4), but which falls within the scope of the discretion in s 101(3), is whether or not the trade mark under consideration has been used by its registered owner in respect of similar goods or closely related services.[12]

   [12] [2021] FCAFC 128, [153] (Jagot, Nicholas and Burley JJ) (emphasis altered) (citations omitted).

   28.     While considering the discretion in E & J Gallo Winery v Lion Nathan Australia Pty Limited Flick J stated:

   Although the “guiding principle behind the discretion is public interest, particularly in the integrity of the register”,[13] the private commercial interests of both [parties] remain matters which may be taken into account when exercising the discretion. Trade mark law, it has been recognised, is more complex than is suggested by the proposition that the supreme—or, at least—a predominant interest is the maintenance of the integrity of the Register.[14] Speaking of the 1955 Act, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ there pointed out the balance struck by the legislation between various interests. Both the interests of the consuming public and the interests of traders have to be recognised.[15]

   [13] Kowa Co Ltd v Organon [2005] FCA 1282, [92] (Lander J).

   [14] Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12, [40].

   [15] E & J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934, [210].

   29.     In the present case, there is no evidence that the Opponent has ever used the Trade Marks or intends to use the Trade Marks in the future in Australia for any of the Removed Goods.  While the Opponent may have a significant reputation in Australia for the Valleygirl mark in the context of clothing and clothing retail I am not persuaded that this provides a justification to allow the the retention of the Trade Marks on the Register for any of the Removed Goods.  The Opponent’s use and reputation here is for a different mark and for quite different goods and services to the Removed Goods.

   30.     In addition, the fact that the Opponent, taking its evidence at its highest, appears to have used the Word Mark (and other marks containing the ‘VG’ element) for clothing products in Australia is not persuasive.  The Trade Marks will remain registered for clothing and I do not consider the public interest in this case is served by allowing a mark to remain registered for a wider variety of goods and services than used or intended to be used by the Opponent.  If I were to remove the Removed Goods for which there is no evidence of use, the Opponent would still retain the protection of the Trade Marks for clothing and (both in respect of any opposition or infringement matters) any similar goods or closely related services, which would be expected to prevent any instance of consumer confusion that could arise where, for example, a third party sought to register a substantially identical mark for clothing products.   

   31.     Finally, I note that the Opponent retains the registration of a significant range of trade marks that reflect its Valleygirl brand in Australia including marks that contain the VG elements.  As such, I do not consider that the private commercial interests of the Opponent would be significantly impacted by the removal of the Trade Marks for the Removed Goods.  It is not necessary for the protection of the public to retain the registration of the Trade Marks for the Removed Goods.  Given the importance of the integrity of the Register I do not consider it appropriate to exercise my discretion not to remove the Trade Marks in respect of any of the Removed Goods.

   Decision

   32.     The Opponent has not established its opposition to partial removal. Accordingly, I direct that registration numbers 1809547 and 1809548 be amended one month from the date of this decision as set out below to remove the Removed Goods. The marks will remain registered for the goods and services listed below. If the Registrar is served with a notice of appeal before then I direct that partial removal shall not occur until the appeal has either been discontinued or, in the event of a decision from the Court, that the registrations be dealt with as the Court sees fit.

   The Device Mark shall remain registered for the following goods and services.

   Class 9: Frames for lenses; Lenses for sunglasses

   Class 14: Imitation jewellery; Jewellery; Jewellery cases; Pins (jewellery); Rings (jewellery); Trinkets (jewellery); Wristlets (jewellery); Watches

   Class 18: Bags made of imitation leather; Bags made of leather; Handbags made of imitation leather; Handbags made of leather; Imitation leather; Leather; Leather purses; Leather wallets

   Class 25: Apparel (clothing, footwear, headgear); Clothing; Ladies clothing

   Class 35: Retail clothing shop services; Retail services

   The Word Mark shall remain registered for the following goods and services.

   Class 9: Frames for lenses; Lenses for sunglasses

   Class 14: Imitation jewellery; Jewellery; Jewellery cases; Pins (jewellery); Rings (jewellery); Trinkets (jewellery); Wristlets (jewellery); Watches

   Class 18: Bags made of leather; Boxes made of leather; Handbags made of imitation leather; Handbags made of leather; Imitation leather; Leather; Leather purses; Leather wallets

   Class 25: Apparel (clothing, footwear, headgear); Clothing; Ladies clothing

   Class 35: Retail clothing shop services; Retail services

   Costs

   33. The Applicant has sought an award of costs in its favour. I see no reason to depart from the general rule that costs follow the event. I accordingly award costs in respect of trade mark number 1809547 against the Opponent under s 221 in the relevant amounts under Schedule 8 of the Regulations. In respect of trade mark number 1809548, I award reduced costs against the Opponent in the same manner as indicated in Hume Industries (Malaysia) Berhad v James Hardie & Coy Pty Ltd.[16] 

   [16] [2001] ATMO 78 (Hearing Officer Williams).

   Nicholas Smith

   Hearing Officer

   Delegate of the Registrar of Trade Marks

   19 March 2024