Flujo Sanguineo Holdings Pty Ltd v Universal Food Products Pty Ltd

[2020] ATMO 34

TRADE MARKS ACT 1995

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

Re:Opposition by Flujo Sanguineo Holdings Pty Ltd to registration of trade mark application 1788314 (30) – NUVIA – in the name of Universal Food Products Pty Ltd.

Delegate:

Debrett Lyons

Representation:

Opponent: David Franklin of Franklin Law

Applicant: Neil Murray of Murray Trento & Associates Pty Ltd.

Decision:

2020 ATMO 34

Trade Marks Act 1995 (Cth) - Section 52 opposition: s 44, 60, 42(a), 58 and 62A considered – no ground established – opposition not established and trade mark to proceed to registration.

Background

1. These proceedings are concerned with an opposition brought by Flujo Sanguineo Holdings Pty Ltd (‘Opponent’) pursuant to s 52 of the Trade Marks Act 1995 (Cth) (‘Act’) to the registration of the trade mark which is the subject of the application detailed below in the name of Universal Food Products Pty Ltd (‘Applicant’): 

App  No:

1788314

Filing Date:

8 August 2016

Goods:

Class 30: sweeteners, natural sweeteners, natural sweetening substances, liquid sweeteners, sweeteners in tablet form, sweeteners for use in baking; icing, icing mixes, powder for edible ices; baking mixes including sweet and savoury bread mix, biscuit mix, brownie mix, cake mix, cupcake mix, donut mix, macaroon mix, muffin mix, pudding mix, waffle mix; pancake mix, pancake batter; cake batter; pastry, pastry mix; custard, custard mixes, custard powder, preparations for making custard; puddings, pudding mixes, pudding powders, preparations for making puddings, ready-to-eat puddings; mousse; snack foods, namely chips, crisps, crackers, rice crackers, snack bars, predominately containing grains (confectionery), snack bars containing a mixture of grains, nuts and dried fruit (confectionery), snack bars containing dried fruits (confectionery); cereals, cereal preparations, breakfast cereals, high protein cereal bars, high-protein bars, muesli, muesli bars, granola bars; biscuits; porridge, oats; chocolate; confectionery, sweets, candies, chewing gum, fruit gums, lollies; ice cream; spreads in this class including chocolate spreads, spreads including hazelnut paste, sweet spreads in this class, spreads including yeast extracts; sweet and savoury sauces in this class; marinades, seasoning marinade; honey; syrups including maple syrup, golden syrup, molasses, chocolate syrup; drinking powders, instant powder for making flavoured drinks; drinking syrups; coffee, coffee beverages, coffee extracts, coffee flavourings, coffee-based beverages, instant coffee, mixtures of coffee, decaffeinated coffee; tea, tea-based beverages, instant tea, tea extracts; hot chocolate, hot chocolate-based beverages; cocoa and preparations having a base of cocoa; malt and preparations having a base of malt; all of the above goods but also including natural sweeteners composed primarily of plant or fruit extracts

(‘Goods’)

Trade Mark:

NUVIA

     (‘Trade Mark’)

1. The Trade Mark application was examined, accepted and advertised in the Australian Official Journal of Trade Marks for possible registration after which the Opponent filed a Notice of Intention to Oppose registration.  The Opponent then filed a Statement of Grounds and Particulars (‘SGP’) and the Applicant filed a Notice of Intention to Defend. 

2. The parties have filed evidence, detailed later, and at their request they were heard via video-conference from Canberra at a hearing convened before me on 7 November, 2019.  At the hearing the Opponent was represented by David Franklin of Franklin Law and the Applicant by Neil Murray of Murray Trento & Associates Pty Ltd.  Both parties provided me with outline written submissions before the hearing.

   Grounds of Opposition, Onus and Standard of Proof

3. The grounds of opposition listed in the SGP and pressed at the hearing were those under ss 42(b), 44, 58, 60 and 62A of the Act. The onus of proof to establish one of those grounds rests upon the Opponent and the relevant standard of proof is the ordinary civil standard based on the balance of probabilities. In this case the date at which grounds are to be determined is 8 August 2016 (‘Relevant Date’) being the filing (and priority) date of the Trade Mark application.

   The dispute in outline

4. The parties are known to each other and are engaged in Federal Court proceedings, MLG 1817/2019, concerned with cancellation proceedings in respect of registration 1751295 for the Trade Mark (also owned by the Applicant) (‘Federal Court action’).  At the time of writing this decision, those proceedings are still at an early procedural stage.  The Federal Court has in the past clarified that the Registrar should not defer its own decision on a matter simply because of related court proceedings.

5. Notwithstanding the breadth of the Goods, the dispute centres on use of the Trade Mark in respect of sugar substitute products, in particular, natural sweeteners.

6. The Opponent is the owner of two registered trade marks, NATVIA and NUTTVIA.  It claims that its NATVIA branded natural sweetener is the market leader in those goods and that the Trade Mark is deceptively similar to both of its marks.

7. In its own words the Opponent’s complaint is that the Applicant has chosen a non-identical but deceptively similar Trade Mark in bad faith having regard to the fact that a director of the Applicant (Peter Vergakis) worked for the Opponent for many years before a falling out with the Opponent.

   Consideration

   Section 44

8. Section 44 of the Act provides, inter alia:

   44Identical etc. trade marks

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

   (a)  the applicant’s trade mark is substantially identical with, or deceptively similar to:

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

   (ii)  a trade mark whose registration in respect of similar goods or closely related services 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 goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

9. The evidence filed here in accordance with the Trade Mark Regulations 1995 (‘Regulations’) comprises the following declarations:

   Evidence in Support

   ·Mr Mark Hanna, director of the Opponent, dated 16 November 2017 with attachments (‘Hanna 1’).

   Evidence in Answer

   ·Mr Peter Vergakis dated 22 February 2018 with attachments.

   Evidence in Reply

   ·Mr Mark Hanna dated 31 May 2018 (‘Hanna 2’);

   ·Mr Kosta Skoufos dated 1 June 2018; and

   ·Mr David Franklin dated 8 June 2018.

10. There is also material filed out of time which it has been ultimately unnecessary for me to discuss or consider in light of my findings which follow.

11. For the purposes of s 44 the Opponent relies on its Australian trade mark registrations (‘Registrations’) detailed below:

Number	Priority date	Trade mark	Goods
1366289	9 June 2010	NATVIA	Class 1:   Artificial sweeteners; artificial sweetening preparations; ingredients for use in the manufacture of foods, including sweeteners Class 30: Sweeteners; natural sweeteners; natural sweetening substances; sugar substitutes
1745997	13 Jan 2016	NUTTVIA	Class 30: Chocolate spreads for use on bread; Spreads consisting of hazelnut paste; Spreads made from chocolate and nuts; Sweet spreads (honey); Yeast extracts as spreads; Natural sweeteners; Chocolate; Chocolate based products; Chocolate creams; Cocoa based products; Cocoa preparations; Foods with a cocoa base; Sugar free confectionery (not for medical purposes)

1. The priority dates of the Registrations are earlier than the Relevant Date. In terms of the section, the following question is whether the compared goods are “similar goods”, an expression defined in section 14(1) of the Act as goods that are the same as other goods or of the same description as that of other goods. 

2. The Opponent has not sought to assist me in this assessment.  The Registrations both cover “natural sweeteners” which are surely the same as or of the same description as the Goods to the extent that the Goods include “sweeteners”, “natural sweeteners”, “natural sweetening substances”, “liquid sweeteners”, “sweeteners in tablet form”, “sweeteners for use in baking” and “natural sweeteners composed primarily of plant or fruit extracts”.

3. Further, registration 1745997    covers a range of class 30 products which are the same as or of the same description as the good bulk of what remains of the Goods not already in conflict with “natural sweeteners”. 

4. What remains is a small number of products such as “chips”, “coffee” and “instant tea”, about which the Opponent (and, for that matter, the Applicant) has said nothing.  What might be said about those goods can in my assessment await examination of the larger remaining issue, namely, whether the compared marks are substantially identical or deceptively similar.

5. Since the class 30 goods of registration 1366289 add nothing to the goods of registration 1745997 it follows that if the Trade Mark is found to be either substantially identical or deceptively similar to NUTTVIA then the s 44 ground will have been established.

6. The Applicant’s written submission is simply that “the Opponent has not established that the … opposed trade mark is either substantially identical or deceptively similar to … NUTTVIA”.

7. The Opponent’s submission is that NUVIA and NUTTVIA are substantial identity[1] because:

   ·      NUVIA is also three syllables, starts with NU and ends with the suffix VIA.

   ·     NUTT and NU are not dictionary words, are short syllables and coupled with VIA, and could be mistaken for each other.

   ·     As a whole, NUVIA is visually identical in substance to NUTTVIA, and in terms of sound, the letter N and suffix VIA play a dominant role visually and aurally, and the differences due to the U are easily lost or not noticed.

   [1] Noting that it has already stated that the marks are not identical, it seeks to argue as a matter of law that they are substantially identical.

8. Compared side by side, as they must be[2], I do not find that the marks are substantially identical.  As far as deceptive similarity is concerned, in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (‘Shell’), Windeyer J stated:

   On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity.

   [2] [1963] HCA 66; (1963) 109 CLR 407; [1962] ALR 304; 35 ALJR 355; 1B IPR 523 at [13].

9. Adapted for present purposes, Windeyer J explained further that:

   … the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of [NUTTVIA] that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from [NUVIA].

10. Insofar as these types of comparison are made, it is also a relevant consideration if the compared marks share a descriptive or otherwise commonplace element.  In that respect I note here the statements from Hanna 1 that the Opponent is “responsible for the manufacturing, marketing and distribution of a stevia-based natural sweetener (sugar substitute) product …” and, later, that:

    “Stevia” is the generic name used by the food industry for extracts from the leaves of Stevia Rebaudiana Bertoni, a plant native to Paraguay, and now grown all over the world, including in Asia. Stevia is 250-300 times sweeter than sugar.

11. It can be inferred from Hanna 1 and, upon my questioning of the parties at the hearing, it was confirmed, that the integer, “VIA”, appearing in the marks is an allusion to stevia.  Hanna 1 lists other stevia-based sweetener brands that have been or still are on the Australian market as:

    Pure Via

    TruVia

    
    

    SteviaSweet

    
    

    Equal Stevia

    Sugarless

    
    

    GreenSpoon

    
    

    Naturals

    
    

    Whole Earth Sweetener

12. Hanna 1 largely gives an account of adoption and use of the Opponent’s NATVIA trade mark but does explain that the Opponent has “also developed and launched a hazelnut spread and related products under the mark NUTTVIA”. Nevertheless, both Registrations cover natural sweeteners and it should be remembered that for s 44 it is the fair and notional use of the relevant trade mark in respect of all the goods for which it is registered that is the touchstone for confusing similarity. In that respect Hanna 1 explains that the Opponent has sought to target the “table top” market for sweeteners which is described as “sugar and sweeteners packed in containers suitable for convenient use by consumers at home, and for use in cafes and restaurants for coffee and hot beverage drinkers. Table top products can range from powders through to tablets, and be packaged in numerous ways.”

13. Against that backdrop, other statements from the case law are instructive.  In de Cordova v. Vick Chemical Co (1951) 68 RPC, at p 106, Lord Radcliffe stated that:

    The likelihood of confusion or deception … is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him. … It is more useful to observe 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.

14. In Shell, Windeyer J stated that the “deceptiveness that is contemplated must result from similarity; but the likelihood of deception must be judged not by the degree of similarity alone, but by the effect of that similarity in all the circumstances.” [3] 

    [3] Ibid.

15. The Opponent’s submissions of relevance are that:

    oconsumers, especially those new to the market, will have imperfect recollection and will easily confuse one with the other, given the shared “N~VIA” composition and shortness of the respective first syllables.

    oslurring, distortion of sound, when selling or promoting the brand over the phone.

    ocompeting goods with the same consumers bearing in mind the nature and size of the market for the goods.

    oProducts similarly packaged in stick sachets, in small boxes of 40 or 80, jars/canisters, pouches.

    othe nature of the competition and third party trademarks in the market;

    othe options available to the Applicant in selecting a trademark, and the choice made

16. I have considered the Opponent’s submissions carefully because there is cause for concern in much of what it has put forward.  The market for natural sweeteners which are an alternative to sugar appears still in a state of development.  The existing brands show only limited use of the element “VIA” and from the evidence as a whole I could not conclude that the Australian public is well educated to understand that term as a reference to stevia.  The brands that do not use “VIA” are altogether different and there is nothing which limited the Applicant’s choice of mark in a way which brought it into proximity with the Opponent’s mark.  I understand the Opponent’s suspicion that the Applicant has sailed as close to the wind as is possible.  I am conscious, too, that the courts have sometimes said that if a competitor sets out to coin a deceptively similar mark, it can be assumed that they succeeded in their ambition.

17. Nevertheless, I find that the Opponent has not done quite enough to pursuade me that the marks are deceptively similar.  I appreciate that the so-called “table top” market, presenting sweetener sticks in cafes for example, is an environment where through causual attention and/or partial obscurity in presentation, NUVIA and NUTTVIA, may be mistaken for each other, but I must remind myself that those persons potentially confused are not the purchasers of the Goods and on the evidence I have no solid foundation to know how the products compare at point of sale either in “stick”or other form. 

18. Taking account of imperfect recollection and the other matters considered above I find that there is just enough to differentiate NUVIA from NUTTVIA and (to some small, but added, extent) NATVIA such that a tangible risk of confusion does not arise.

19. The Opponent has not eatablished a ground of opposition under s 44 of the Act.

    Section 58

20. The s 58 ground of opposition, namely that the Applicant is not the owner of the Trade Mark, can be dealt with summarily in consequence of my finding above that NUVIA is not a substantially identical trade mark to either NATVIA or NUTTVIA. It follows that any claim to ownership of those marks does not extend to a claim to ownership of the Trade Mark[4] and there the enquiry ends.  The Opponent has not established this ground of opposition.

    [4] Carnival Cruise Lines Inc. v Sitmar Cruises Ltd [1994] FCA 936

    Section 60

21. Section 60 of the Act provides:

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

    The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

    (a)another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and

    (b)because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.

    Note:For priority date see section 12.

22. Accordingly, the Opponent needs to establish to the satisfaction of the Registrar that:

    ·     the trade mark(s) upon which it relies had a reputation in Australia at the priority date; and

    ·     because of that reputation the use of the Trade Mark would deceive or cause confusion.

    NUTTVIA

23. Hanna 1 does not indicate when hazelnut spreads bearing this trade mark were lauched but states that:

    The NUTTVIA brand has taken off very quickly, and has developed a strong following and reputation through substantial marketing and social media – see and

24. Visits to those online locations did not help me understand reputation or marketing penetration in the manner described in, for example, McCormick & Co Inc v McCormick[5] where Kenny J stated:

    In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product: see, e.g., Isuzu-General Motors Australia Ltd v Jackeroo World Pty Ltd (1999) 47 IPR 198; Marks & Spencer plc v Effem Foods Pty Ltd (2000) AIPC 91-560; Photo Disc Inc v Gibson (1998) 42 IPR 473; and RS Components Ltd v Holophane Corp (1999) 46 IPR 451. This Court has followed this approach as well, acknowledging that public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things. Thus, in Toddler Kindy Gymbaroo Pty Ltd v Gymboree Pty Ltd [2000] FCA 618 (“Gymboree”), Moore J accepted at [94] that the applicant had established a reputation for the purposes of s 60 solely on the basis of use and promotion of the relevant mark. Another example of this approach is Nettlefold Advertising Pty Ltd v Nettlefold Signs Pty Ltd (1997) 38 IPR 495 (“Nettlefold”), in which Heerey J relied upon the public visibility of the applicant’s marks over approximately two decades as well as a $100,000 promotional campaign in finding that a reputation for the purposes of s 28 of the 1955 Act existed.

    [5] [2000] FCA 1335; (2000) 51 IPR 102; [2000] AIPC 38-192 at [86].

1. What I do see there is consistent use of the mark in the form shown below:

2. The use is only in respect of a hazelnut spread[6] and the product is touted as using the Opponent’s NATVIA sweetener as a sugar replacement as shown by the promotion below taken from the official website:

   [6] In spite of the statement in Hanna 1 of use on that spreaks and “other products”.

3. In Pottle Productions Inc v Rute Ithalat Ve Ihracat Anonim Sirketi the Registrar’s delegate observed:[7]

   The assessment of the likelihood of deception or confusion under section 60 is informed by the strength of the reputation of the Opponent’s trade mark(s), the inherent distinctiveness thereof, the degree of similarity between the trade marks under consideration and the nexus or connection between the goods and/or services of the parties. Each of these is a variable and it is possible that a trade mark’s reputation might be sufficiently strong and the degree of similarity to an opposed trade mark be so great (particularly where the trade marks are inherently distinctive) that confusion or deception will be a likelihood where very little, if any, nexus or connection exists between the goods and/or services under consideration.

   [7] [2012] ATMO 124 at [40].

4. In short, there is no proof of a s 60(a) reputation and, were there, the presentation of the trade mark in use is largely descriptive of the goods to which it has been applied, thus eroding the likelihood of confusion with the Trade Mark even if the assessment had progressed to s 60(b).

5. The absence of an established reputation in NUTTVIA is determinative of the section 60 ground which I find has not been established.

   NATVIA

6. Hanna 1 states that NATVIA was first used in 2009 and since 2010 has sold in supermarket chain stores, at the time of the declaration accounting “for up to 25% of the total sugar substitute category”.  Hanna 1 goes on to state that “[s]ales figures for NATVIA products in Australia are substantial, annually in seven figures. These figures are highly commercially sensitive and would be extremely valuable information to key competitors such as the applicant, and so cannot be disclosed without suitable confidentiality undertakings.”

7. Those figures were not ultimately disclosed  and so I must gauge reputation based on the unsupported assertion above.  There I am faced with uncertainties since “sales figures” may refer to monetary figures or to units of product sold.  If the latter, then the reference may be no more than to seven digit sales per annum of sweetener “sticks”.  The Applicant’s complaint is that there is no proof of reputation and I have to agree that is so.

8. Once more, s 60(a) has not been proven and so the s 60 ground has not been established based on either of the Opponent’s marks.

   Section 42

9. Subparagraph 42(b) of the Act relevantly provides:

   42Trade mark scandalous or its use contrary to law

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

   […]

   (b)its use would be contrary to law.

10. The onus is on the Opponent to establish on the balance of probabilities that use of the Trade Mark would, rather than could, be contrary to law.[8] The Opponent’s argument rests on asserted breach of s 18 of the Australian Consumer Law (‘the ACL’).  

    [8] Advantage Rent-a-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683.

11. There is no evidence of the Applicant having made an actual representation that the Goods have any connection with the Opponent’s business. It follows that any alleged misrepresentation or misleading representation can only be construed having regard to the Opponent’s pre-existing reputation in the Trade Mark. The Opponent has failed to establish the ground of opposition under s 60 of the Act and it is well recognised that the test for “misleading or deceptive conduct” under s 18 of the ACL is a more stringent test than that for “deception or confusion” under s 60.[9] Accordingly, I find that the Opponent has also failed to establish that use of the Trade Mark would be contrary to s 18 of the ACL.

    [9] See, e.g.: Ownit Homes Pty Ltd v Ownit Conveyyancing Pty Ltd [2005] ATMO 47, [36]; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 198 (Gibbs CJ).

12. I find that the Opponent has not established the ground of opposition under s 42 of the Act.

    Section 62A

13. Section 62A of the Act states that the registration of a trade mark may be opposed on the ground that the application was made in bad faith.

14. The uncontested evidence is that Peter Vergakis, now a director of the Applicant, worked with the Opponent from 2009 to 2014.  Hanna 2 describes Vergakis as “an investor, colleague and confidant” during that time; further, that “the business relationship ended badly”.   The Opponent’s written submission is that Vergakis “had a falling out with the directors of the [O]pponent, and sued them for damages, settled, but the rift has not healed.”

15. Against that backdrop, the Opponent’s account is that Vergakis established a directly competitive business in 2015 “with personnel who were working for the [Opponent’s] Indonesian distributor at the time.”

16. Section 62A is concerned to discover whether the Applicant’s conduct in applying for registration fell short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons.[10] In many cases brought under s 62A, the decision maker is left to consider the allegation of bad faith based on inferences to be drawn from the similarity of the trade marks at issue. In other words, the direct actions of the parties is inconclusive and the applied-for trade mark is weighed to along with circumstantial evidence in an effort to reveal the applicant’s state of mind.

    [10] See, for example, DC Comics v Cheqout Pty Ltd (2013) FCR 194 at [62], per Bennett J.

17. The case law is still developing.  It has been held already that the trade marks need not be either the same or even deceptively similar.[11] That would accord with the apparent common sense of bad faith action where one party had undertaken to another not to apply for a certain mark, for whatever reason, but did so. Nevertheless, a so far untraversed area invites further consideration of how far s 62A contemplates underhand or unscrupulous behaviour which is distanced from the correspondence of the marks themselves.

    [11] Op. cit.

18. In this case I have found that the marks are not deceptively similar.   They are, nevertheless, similar and there can be little doubt that was the Applicant’s intention.  There is no doubt that the parties are competitors in the same, nascient, market.  I observe here that the Federal Court action is concerned with a cancellation action brought by the Opponent to remove the Applicant’s registration 1751295  for NUVIA (the Trade Mark) from the Register.  The application which gave rise to that registration escaped the Opponent’s notice.   It was filed on 9 February 2016, accepted on 15 April 2016 and registered on 7 September 2016.   Notably, the registration was made and obtained for class 30 goods being, simply, “natural sweeteners”.   I am caused to ponder why the present application carries a wide specification of diverse class 30 goods (including sweeteners) but since the Opponent did not pursue a s 59 ground of opposition there is no evidence before me of these matters and I must limit my wonderment.

19. The Applicant may have set it sails very finely when it coined the Trade Mark, but it has nevertheless navigated past the danger of s 62A. Whilst it has showed competitive commercial behaviour, I find that behaviour would be of a standard acceptable to reasonable and experienced persons.

20. I find that the s 62A ground of opposition has not been established.

    Decision

21. Section 55 of the Act relevantly provides:

    55 Decision

    (1)Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

    (a)to refuse to register the trade mark; or

    (b)to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

    having regard to the extent (if any) to which any ground on which the application was opposed has been established.

    Note:For limitations see section 6.

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

23. The Trade Mark may proceed to registration one month from the date of this decision.  If the Registrar has been served with a notice of appeal before that time, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the application should be in accordance with the court’s order or direction.

    Costs

24. The Applicant sought its costs in the event it was successful in this matter and I accordingly award costs against the Opponent at the official scale set out in Schedule 8 to the Regulations.

    Debrett Lyons

    Hearing Officer

    Hearings and Oppositions

    5 March 2020