Glaxo Group Limited v Avexa Limited [Sec=Unclassified]
[2009] ATMO 84
•28 October 2009
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Glaxo Group Limited to registration of trade mark application 1088656(1, 5, 42, 44) - AVEXA - filed in the name of Avexa Limited.
Delegate: Alison Windsor Representation: Opponent: Fiona Symons of Davies Collison Cave, patent and trade mark attorneys
Applicant: Dr Warwick Rothnie of counsel instructed by Ellis Technology LawyersDecision: 2009 ATMO 84
S52 opposition: ss42(b), 44, 59 and 60 – no grounds established - - opposition fails – costs awarded against opponentBackground
Avexa Limited (“the applicant”) filed an application to register a trade mark, current details of which are shown below:
Trade mark number: 1088656
Filing date: 2 December 2005Goods/service specifications: Class 1: Chemicals for use in science, research and industry; chemicals and chemical reagents for use in the manufacture of pharmaceuticals
Class 5:Pharmaceutical preparations and substances including preparations for healthcare, chemicals and chemical preparations and substances used for medicinal and pharmaceutical purposes and in medicines
Class 42:Scientific and technological services and research and design relating thereto; industrial analysis and research services
Class 44:Medical services, healthcare services; advisory services relating to healthcare
Trade Mark: AVEXA
The application was examined as required by section 31 of the Trade Marks Act 1995 (“the Act”) and on 8 March 2007 was advertised in the Australian Official Journal of Trade Marks as accepted for possible registration.
On 11 May 2007 Glaxo Group Limited (“the opponent”) filed a notice of opposition (“the notice”) in the broadest possible terms. Evidence in support, in answer and in reply were filed in due course. The opponent then requested a hearing.
I heard the opposition in Melbourne on 24 July 2009 in my capacity as a delegate of the Registrar of Trade Marks. At the hearing, the applicant was represented by Dr Warwick Rothnie of counsel, instructed by Ellis Technology Lawyers. The opponent was represented by Fiona Symons of Davies Collison Cave, patent and trade mark attorneys.
Grounds of opposition and onus
At the hearing the opponent pursued only the following grounds:
· Paragraph 42(b) – use contrary to law
· Section 44 – identical etc trade mark, specifically in relation to registration no. 1010296 – KIVEXA – for pharmaceutical preparations and substances in class 5
· Section 59 – the applicant does not intend to use or authorise use of the trade mark or assign it to a body corporate
· Section 60 – trade mark similar to one with a reputation within Australia.
As none of the other grounds nominated on the notice were referred to, I find that none of them have been established.
The onus is on the opponent to establish one or more of the four grounds it pursued. The standard to be applied in deciding the matter is that of “the balance of probabilities”.[1] The facts relevant to the opposition are to be judged as at the priority date.
[1] Pfizer Products Inc v Karam [2006] FCA 1663; (2006) 70 IPR 599; Chocolaterie Guylian N.V v Registrar of Trade Marks [2009] FCA 891
Evidence
The evidence provided by the parties in this opposition is listed in the following table:
Declarant Position Exhibits Evidence in support Stephen Marty Registrar of Pharmacy Board of Victoria SM-1 to SM-20 Brett Lewis Partner, Davies Collison Cave BL-1 to BL-2 David Rushton Walker Company Secretary and Legal Services Manager of GlaxoSmithKline Australia Pty Ltd DRW-1 to DRW-3 Sally Erica Foreman Solicitor, Davies Collison Cave SEF-1 Evidence in answer Wilfred Winston Yeo Professor of Medicine and Clinical Pharmacology at Graduate School of Medicine, University of Wollongong WWY-1 to WWY-10 Julian John Chick Chief Executive Officer and Executive Director of Avexa Ltd JJC-1 to JJC-3 Edwina Elizabeth Baddeley Principal of Ellis Technology Lawyers Evidence in reply Fiona Symons Solicitor, Davies Collison Cave FMS-1 to FMS-14 Evidence in support
The Walker declaration states that the trade mark KIVEXA is used in relation to an antiretroviral combination therapy for the treatment of Human Immunodeficiency Virus (“HIV”). The trade mark has been used commercially in Australia since December 2005, following registration with the Therapeutic Goods Administration (“TGA”) in March 2005. The estimated value of the goods sold in Australia under the KIVEXA mark amount to many millions of dollars annually. The opponent has five HIV specialist representatives promoting and selling the goods in Australia, and they spend approximately 70% of their time in this activity. Other promotion is via trade shows, educational meetings, continuing medical education activities and meetings such as the Australian Society for HIV Medicines held in Perth in 2008, as well as advertising in professional journals such as the Journal of HIV Therapy, and the Sexual Health Journal.
The Marty declaration goes largely to a discussion of, and provision of information and examples of, what is described as “medication misadventure” - in Mr Marty’s words, “a broad description applied to adverse drug reactions, prescribing errors, dispensing errors and administration errors”. Mr Marty is the Registrar of the Pharmacy Board of Victoria, and has a particular interest in the topic of medication misadventure. As exhibits to his declaration he has provided copies of publications on the subject, and numerous examples of substitutions of one drug for another, most in circumstances where there is a consideration that the drug names were similar enough for confusion to be highly probable.
Of particular importance in respect of the confusion between similarly named drugs are, Mr Marty says, the following issues:
· Poor handwriting by doctors on drug prescriptions
· Poor handwriting of admitting staff in hospitals
· Confusion between similar sounding drug names when verbal instructions are issued
· Shared prefixes for different drugs resulting in confusion at the dispensary
· Misreading of similar names by patients administering their own drugs
· Similarity in packaging for different drugs
· Human error
I will refer to the Foreman and Lewis declarations where necessary in my discussions later in this decision, as they largely deal with the state of the Register of Trade Marks (“the Register”), and the contents of the official application file.
Evidence in Answer
The Chick declaration goes to the applicant’s intended use of the trade mark AVEXA in the pharmaceutical trade. The applicant’s business, he says, is the discovery and development of anti-infective pharmaceutical medicines for the treatment of serious human infectious diseases. Dr Chick states that the trade mark is to be the “house mark” of the applicant, and that it will not be used as a drug name. Any drugs discovered and sold will be marketed under another brand name which will appear on the packaging with the house mark.
Dr Chick also refers to the clinical research trials the applicant is conducting in respect of a new drug for treating HIV infections. He states that while these clinical research trials are progressing, it is not permitted to use a marketing or brand name for the substance being trialled. He categorically states that AVEXA will not be the name once the drug is approved.
At the time of swearing the declaration, Dr Chick states that the applicant was involved in numerous scientific collaborations in respect of a wide range of projects in different parts of the world. These collaborations are in respect of HIV, Hepatitis B and Vancomycin-resistant infections.
In addition, he states that the applicant regularly presents at scientific conferences around the world, and he has conducted extensive “road shows” around Australia and the world to promote the applicant company to analysts and potential investors.
The Yeo declaration provides a different view of the matter of “medication misadventure”. Professor Yeo states that he agrees with Mr Marty that medication misadventures are common, but disagrees with the prominence given to errors arising from similarly named drugs. Specifically, he disagrees with the assertion that such an error is likely to occur when an individual drug has a similar name to a house mark.
Evidence in Reply
The Symons declaration contains examples of packaging from a range of pharmaceutical products, all of which include both a “house mark” and a product name on the package.
Discussion and reasons
The bulk of the opponent’s submissions at the hearing were in respect of the grounds nominated under sections 44 and 59 of the Act. As the result of my decision in respect of either of these two sections is likely to affect the operation of sections 42 and 60, it is appropriate that I deal with these sections first.
Section 59 – Applicant not intending to use trade mark
This is a challenging ground for the opponent in that it needs to establish a prima facie case that the applicant, despite the intention said to be evidenced by its filing of the application,[2] did not intend to use its trade mark in respect of the goods and services claimed.
[2] Aston v Harlee Manufacturing Co (1960) 103 CLR 391
The opponent submitted that at the date of filing the applicant had no intention to use its trade mark in respect of the goods claimed in class 5. Support for this submission, Ms Symons said, was found at paragraph 5 of the Chick declaration which states:
… at that time [2 December 2005], Avexa Limited had only recently been listed and the direction of the company had not been fully scoped. Therefore, Avexa Limited applied for the mark AVEXA in the following classes .. .
This, Ms Symons said, shows that “the applicant had not formed the requisite ‘resolved or settled’ intention to use the AVEXA trade mark in relation to Class 5 goods.”[3] She provided additional support to this contention in her references to the following paragraphs of the Chick declaration:
11. While no name has been selected, I am able to say categorically state [sic] that the mark AVEXA will not be the name of the new product.
12. I am also able to say that Avexa does not intend to use the mark AVEXA for any pharmaceutical products (’Drugs’) that Avexa will market in the future.
[3] Ducker’s Trade Mark (1928) 45 RPC 397; Lomas v Winton Shire Council [2002] FACFC 413
Ms Symons also considered that the applicant’s failure to apply for TGA listing for the name AVEXA was indicative of its lack of intention to use the name in relation to Class 5 goods, as was its failure to provide any examples of the trade mark in use. She suggested the lack of intention to use demonstrated by the information she had provided allowed for either refusal of the registration as a whole, or as an alternative, deletion of class 5 from the application, allowing it to proceed to registration in the remaining classes.
Dr Rothnie responded to these submissions by submitting that section 59 does not require that there be actual use of the trade mark. The section only operates if the opponent can demonstrate that the applicant does not have any intention to use the trade mark. He submitted that the information the applicant had provided gave clear evidence of both an intention to use and actual use. Examples of the trade mark used in documents such as invoices and correspondence, as well as in the ‘road show’ Dr Chick presented around Australia, were clearly use of the trade mark. He said it is not necessary that goods actually be placed on the market as all the steps necessary for the production of goods are activities “in the course of trade”.
In relation to this ground, I agree with Dr Rothnie’s arguments that the applicant has demonstrated an intention to use its trade mark in respect of all of the goods and services it has claimed. The opponent’s submissions to the contrary seem to be based on a very narrow contention - specifically that for use to occur in respect of goods in class 5 the trade mark must be applied as the name of the drug or substance being sold.
Section 7 of the Act defines use of a trade mark. Subsections (4) and (5) read as follows:
(4) In this Act:
use of a trade mark in relation to goods means use of the trade mark upon, or in physical or other relation to, the goods (including second-hand goods).
(5) In this Act:
use of a trade mark in relation to services means use of the trade mark in physical or other relation to the services.
Subsections 4 and 5 are the subsections particularly relevant to this discussion – the use of a trade mark may be in physical or other relation to the goods. This incorporates use on banners, point of sale advertising materials or indeed any material at all which serves to identify the goods by means of the trade mark. Use as a house mark on packaging obviously falls into this category as does advertising of any kind in respect of the relevant goods and services. There is no need for a trade mark designed for use for goods in class 5 to be the specific trade name of a pharmaceutical substance. The opponent’s contentions do not stand up to close scrutiny even in respect of the goods in class 5 and thus it has not met the onus placed upon it to establish lack of intention to use.
The opponent has not succeeded in establishing this ground of opposition.
Section 44 – identical etc trade marks
Section 44 provides that an application to register a trade mark must be rejected if:
· the applicant’s trade mark is substantially identical or deceptively to another trade mark
· owned by a different legal entity
· which has an earlier priority date and
· is claiming similar goods and/or closely related services.
The opponent submitted that the applicant’s trade mark AVEXA was deceptively similar to the opponent’s earlier dated trade mark KIVEXA, and that the two trade marks both encompassed the same goods in class 5. Ms Symons noted that the issue of the trade marks’ similarity was being considered for the first time at the hearing, as the matter had not arisen during examination of the application. The Foreman declaration exhibited a copy of the examination search file which demonstrated that the search strategy used by the examiner at the time would not have alerted him to the fact that the opponent’s trade mark was on the Register.
This observation is certainly true. In order to reveal the opponent’s trade mark, the examiner would have needed to use a different search strategy. That matter only becomes relevant, however, if the applicant’s and opponent’s trade marks are substantially identical or deceptively similar and that is the matter I must now decide.
The opponent conceded that the two trade marks were not substantially identical. Therefore, I will restrict my considerations to the matter of deceptive similarity.
Deceptive similarity is defined by section 10 of the Act which provides:
For the purposes of this Act, 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.
The opponent submitted, and I agree, that French J’s discussion of the concept in the Woolworths Metro case[4] is pivotal in deciding deceptive similarity. At paragraph 50 he said:
[4] Woolworths Ltd v Registrar of Trade Marks (1999) 45 IPR 411
In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 594–5, which concerned the 1905 Act, Kitto J set out a number of propositions which have frequently been quoted and applied to the 1955 Act. The essential elements of those propositions continue to apply to the issue of deceptive similarity under the 1995 Act. Applied also to service marks and absent the imposition of an onus upon the applicant they may be restated as follows:
(i) To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient.
(ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt.
It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.
(iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.
(iv) The rights of the parties are to be determined as at the date of the application.
(v) The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained.
In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v Bali Co Inc (1973) 129 CLR 353 at 362 ; 1 ALR 443 at 450:
… the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion.
In addition, the opponent referred to the words of Dixon and McTiernan JJ in regard to the net impression of the trade marks[5]; to Parker J in respect of considering all the surrounding circumstances[6] and to Luxmoore LJ in respect of the doctrine of imperfect recollection[7]. These references encapsulate the usual tests used in making the decision which I must make in respect of these two trade marks.
[5] Australian Woollen Mills Ltd v F S Walton & Co 58 CLR 641 at 658
[6] Re Application by the Pianotist Co Ltd (1906) 1A IPR 379 at 380
[7] Aristoc Ltd v Rysta Ltd (1943) 60 RPC 87 at 108
The opponent submitted that the Marty declaration, taken as expert evidence in the field, provides information that is directly relevant to the assessment of deceptive similarity. Ms Symons described Mr Marty as “an adjudicator of standards in the pharmacy profession” and said that “by the standards of that profession the respective marks are unacceptably close”. Certainly, the main bulk of the opponent’s evidence is in respect of the concept of “medical misadventure” and the likelihood of pharmaceutical goods which have arguably similar names being mistakenly provided in varying circumstances. The information provided is interesting, and decidedly disturbing, given how different some of the names which are recorded as having been confused appear to be,[8] but I am not at all convinced that it is particularly relevant to the decision which I must make in this case.
[8] For example – Beconase and Beta-loc; Periactin and Panadeine Forte; Diaformin and Diamicron.
This kind of evidence has been considered in at least two recent decisions, both made by Hearing Officer Thompson. In Glaxo Wellcome Australia Ltd v Bukwang Pharm Co, Ltd , 2008 ATMO 12, he made the following remarks:
Mr Marty is Registrar of the Pharmacy Board of Victoria. He attests to the possibility of medical misadventure through the mistake of one prescription for another. I will not discuss this declaration any further as this possible outcome of deception or confusion is implicit in any finding that the trade marks are deceptively similar. In Merck KGaA v Generic Health Pty Ltd [2007] ATMO 1, after discussing the specific problems with the evidence before me, I noted, at paragraph 32:
The other problem with this type of evidence is that it invites an importation of general health policy considerations into the comparison of the trade marks under section 44 rather than to provide concrete evidence about the marketplace in which the goods are sold.
This ‘policy’ approach to the issue appears to me to go very much to the exercise of a discretion by the Registrar of the type that was present in the Trade Marks Act 1955. However, the import of general policy issues into considerations of the type of matter before me under section 44 is one that is not appropriate under the Trade Marks Act 1995. As observed by French J in Registrar of Trade Marks v Woolworths [1999] FCA 1020:
The grounds for non-acceptance of an application to be found in Division 2 of Part 4 of the Act substantially reflect grounds for non-acceptance set out in recommendation 6A of the 1992 Working Party Report. It was said in the Report:
"These grounds have been formulated with the aim of excluding matters which are considered inappropriate for a bureaucracy to determine, such as matters of morality or fraud, and with general principles in mind that it should be procedurally straightforward to obtain registration of a trade mark, and procedurally straightforward to have one removed from the Register. This aim can be achieved, at least in part, by defining clearly the grounds on which an application may be denied registration, as well as those whereby the registration may be rectified or removed." (p 44)
Deputy Registrar Hardie also commented on this kind of issue in Schering Aktiengesellschaft v Bracco International B.V [1999] ATMO 89:
I do take note, however, of Ms Freeman's reference to Edward's Application [(1946) 63 RPC 19 - the JARDEX/JARDOX case] and her submissions that, where medical products are concerned, there is strong public interest in precluding even small risks if there is a possibility of dangerous consequences.
Edward's Application however, was decided not on the basis of a real likelihood of risk, but on an exercise of the Registrar's discretion. That discretion does not exist under the Trade Marks Act 1995. The provisions of section 44 as analysed and explained by Justice French require a positive finding that a risk of deception or confusion is likely
Thus evidence of this sort goes to the effects of confusion and deception – not the causes. To take account of this kind of evidence in the analysis of whether trade marks are deceptively similar is to put the cart before the horse and consequently to confuse cause and effect.
I agree with the hearing officer in his analysis of the kind of evidence which has formed most of the opponent’s case. I will be comparing two trade marks on the basis of the accepted tests mentioned previously. I will not be considering them based on the kind of aberrant situations which form the substance of so-called ‘medical misadventures’.
That said, the opponent did provide more submissions relevant to the traditional comparison of trade marks under section 44. Ms Symons said that it was significant that both trade marks ended with the suffix –VEXA, which is an uncommon suffix on the Register, appearing only three times.[9] Other points of similarity noted in the submissions were that both trade marks are invented words; neither conveys any definite ideas or meanings; each consists of three syllables; and the sound and appearance of both words are very similar. The end result of the combination of all these factors is, the opponent submitted, that the net impression of the two words is one of strong similarity, meaning that, on the balance of probabilities, the trade mark AVEXA is likely to deceive and cause confusion.
[9] Lewis declaration, paragraph 2 and exhibit BL-1.
Dr Rothnie, on the other hand, whilst referring to the same basic tests, considered that the trade marks look and sound quite different, based on the first letters and first syllables of the words (KIV- vs AV-); and that the common suffix has no special significance nor is it particularly memorable. He also noted that the applicant uses, and intends to use the word AVEXA as a house mark for a range of pharmaceuticals, not as the name of a particular drug. He advised that Professor Yeo had concluded that in overall context, “similarly named drugs are responsible for a tiny proportion of medication errors”[10] and that the circumstances in the marketplace are changing to reduce this level of risk even further, via the use of, for example, computer generated prescription and labeling, instead of handwriting. [11]
[10] Yeo declaration at paragraphs 13.
[11] Yeo, paragraph 14.
As I consider the matter, I note that while the suffix –VEXA is uncommon on the Register, trade marks in class 5 ending in the suffix –EXA are decidedly more frequent. This fact serves to weaken the opponent’s arguments somewhat. Once the trade marks are considered in this light, the differences lie in the prefixes – KIV- and AV-, as Dr Rothnie submitted.
While these prefixes are quite different – one commencing with a hard consonant and the other with a vowel, and not the same vowel as in the first mentioned prefix, this is not sufficient to determine the matter. I need to decide whether the trade marks, in their entireties, are likely to result in a real tangible chance of confusion in the relevant market.
This matter is not to be decided by a letter by letter or syllable by syllable dissection of the two trade marks. The overall impression of the two trade marks as they are likely to appear in the relevant market is the appropriate consideration in deciding deceptive similarity. I note however, that spoken use of the trade mark is an aspect which does need to be taken into consideration in this comparison.
In this case, neither trade mark has a fixed pronunciation. The opponent’s trade mark could be pronounced KEEVEXA, KIVEXA (‘I’ as in ‘it’) or K’VEXA (the ‘I’ sound elided). The applicant’s trade mark could be pronounced with either a long or short ‘A’ sound – AYVEXA (‘A’ as in ‘pay’); AVVEXA (‘A’ as in ‘at’) or UHVEXA. In respect of either trade mark, the amount of emphasis placed on the suffix, whether it be ‑EXA or –VEXA, is likely to vary somewhat .
The applicant has submitted that its intention is to use its trade mark as a house mark for a range of goods and services, rather than as the trade name of a particular pharmaceutical.[12] This claim does not allow me to decide, on that ground alone, that there is a reduced chance of confusion within the market. Section 44 requires a comparison of the trade marks on the basis of notional use – what the applicant can do once it has a registration – rather than what it says it intends to do “at this time”.
[12] Chick declaration, paragraph 13 – “At this time, Avexa intends to use the mark AVEXA as a house mark.”
No matter how the applicant eventually chooses to use its trade mark in the future, I consider it unreasonable to assume that its use of a word with the same suffix as that used by the opponent in its own trade mark automatically precludes it from registration. There are sufficient differences between the two trade marks, whether written or spoken, for them to be distinguished one from the other when due care, such is ordinarily given to medicines and medical services is taken in viewing the trade marks. Additionally, there are a number of other traders in the same field who have registered trade marks which incorporate the suffix –EXA, a suffix common to both the trade marks under consideration.
Taking all these matters into account, I am satisfied that the two trade marks are not deceptively similar. I am satisfied that, in the relevant market, the overall impression of the two trade marks is sufficiently different that there is not a real tangible chance of a significant number of people being confused if both trade marks appear on the relevant goods or the relevant services. The ground of opposition is therefore not established.
Section 60 – trade mark similar to one with a reputation
The application was filed on 2 December 2005. This is prior to the amendment of section 60 by the Trade Marks Amendment Act 2006. The un‑amended form of section 60 therefore applies[13], and requires that the trade marks under consideration be at least deceptively similar before the ground can be established. Since I have found the trade marks do not to meet that requirement, the opponent fails on this ground at the threshold.
[13] Apple Computer Inc v Todaytech Group Pty Ltd [2007] ATMO 40 (“MACRON”)
Paragraph 42(b) – use contrary to law
For this ground to be established, it is necessary for the opponent to demonstrate that use of the applicant’s trade mark would, not could, be contrary to law.[14] There is no restriction on which law is meant here, but sections 52 and 53 of the Trade Practices Act 1974, referring respectively to misleading or deceptive conduct and false or misleading representations, are the sections of the law to which the opponent’s brief comments can be seen to refer.
[14] Advantage Rent-A-Car Inc v Advantage Car Rental Pty Ltd (2001) 52 IPR 24
Since I have found the trade marks under consideration are not deceptively similar, they are unable to surmount the higher hurdle implicit in the trade practices law. The opponent appeared to be aware of this likelihood, as its submissions in respect of section 42 were based on the contrariety to law only being applicable if the trade marks were found to fall foul of section 44. Since the trade marks did not fall foul of that section, the opponent has failed to establish this ground.
Final comment – applicant’s already registered trade mark
A matter which was mentioned in both the applicant’s and opponent’s submissions is the matter of the already registered trade mark belonging to the applicant. The applicant filed two trade mark applications on the same date – 1088656 subject of this opposition, and 1088691, an image of which is shown below:
The opponent submitted that the existence of this registered trade mark should not provide a precedent in respect of the decision on the opposed trade mark. The comments made suggest that the opponent’s failure to oppose the now registered trade mark were the result of an oversight at the time. For what little solace it provides, I make it clear that the existence of the already registered trade mark has not figured at all in my considerations of the applicant’s opposed trade mark.
Decision
The opponent has not established any ground of opposition, and is therefore unsuccessful in this action. Application 1088656 may proceed to registration one month from the date of this decision. If the Registrar is notified of an appeal from this decision before that time, the application will not proceed to registration until such time as the appeal has been discontinued or registration is otherwise ordered by the court.
Costs
Both parties requested their costs in the event of success. Costs usually follow the event. I therefore award costs against the opponent according to the official scale.
Alison Windsor
Hearing Officer
Trade Marks and Designs Hearings28 October 2009
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