Google LLC v Pushkar Chitkara

[2024] ATMO 27

TRADE MARKS ACT 1995

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

Re:Opposition by Google LLC to registration of trade mark application number 2202650 (39) – koogle – in the name of Pushkar Chitkara

Delegate:

Louise Tuohy

Representation:

Opponent: Lucy McGovern of counsel instructed by Caelan Bruce of Gilbert + Tobin

Applicant: Andrew Petale of Yip Legal

Decision:

2024 ATMO 27

Trade Marks Act 1995 (Cth) – opposition under section 52 – sections 44, 60, 42(b) and 62A considered – none established – trade mark to proceed to registration

Background

1.     This matter concerns an opposition by Google LLC (‘Opponent’) under s 52 of the Trade Marks Act 1995[1] to the registration of the following trade mark application (‘Application’) in the name of Pushkar Chitkara (‘Applicant’):

[1]  Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) or regulation of the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

Trade Mark Number:      2202650

Trade Mark:  koogle (‘Trade Mark’)

Filing Date:  13 August 2021

Specification:  Class 39:   Rideshare , Taxi , passenger service , Online booking passenger services; Carpooling service (‘Applicant’s Services’).

2.     The Application was examined as required by s 31 and advertised for possible registration on 14 January 2022.

3.     On 14 March 2022 the Opponent filed a Notice of Intention to Oppose the registration of the Trade Mark followed by its Statement of Grounds and Particulars (‘SGP’) on 11 April 2022. The Applicant filed a Notice of Intention to Defend the registration on 26 May 2022.  

4. Thereafter the parties filed evidence in accordance with the Regulations. The Opponent filed the following evidence in support:

·Declaration of Monique Liburd, Trade Mark Counsel of the Opponent, made on 16 August 2022, with Exhibits ML-1 to ML-40 9 (’Liburd 1’).

5.     The Applicant filed the following evidence in answer:

·Declaration of Pushkar Chitkara, made on 24 November 2022, with Annexure PC-1 to PC-5 (‘Chitkara’).

6.     The Opponent filed the following evidence in reply:

·Declaration of Monique Liburd, made on 26 January 2023, with Exhibits ML-41 to ML-55 (‘Liburd 2’).

7.     Once time for filing evidence had ended both parties were given the opportunity to either request an oral hearing or a hearing by way of written submissions. The Opponent requested an oral hearing via videoconference and the Applicant requested a hearing by way of written submissions. The Opponent filed its written submissions on 19 January 2024 and the Applicant filed its written submissions on 29 January 2024. I heard the matter on 2 February 2023. Lucy McGovern of counsel instructed by Caelan Bruce of Gilbert + Tobin appeared by via videoconference for the Opponent providing oral submissions. As a delegate of the Registrar of Trade Marks I will decide this matter based on the SGP, evidence and submissions.

Grounds of Opposition, Relevant Date and Onus

8.     In the SGP the Opponent nominated grounds of opposition under ss 44, 60, 42(b) and 62A.

9.     The date at which the rights of the parties are to be determined is the filing date 13 August 2021 (‘Relevant Date’) which is also the priority date for the purposes of ss 44 and 60.

10.   The Opponent bears the onus of establishing at least one of the grounds of opposition.[2] The standard of proof is the ordinary civil standard of the balance of probabilities.[3]

Discussion

Section 44

[2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

[3] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [132] (Besanko, Jagot and Edelman JJ).

1. Section 44 provides:

   44  Identical etc. trade marks

   […]

   (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 the similar services or closely related goods.

   (3)  If the Registrar in either case is satisfied:

   (a)  that there has been honest concurrent use of the 2 trade marks; or

   (b)  that, because of other circumstances, it is proper to do so;

   the Registrar may accept the application for the registration of the applicant’s trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant’s trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area.

   (4)  If the Registrar in either case is satisfied that the applicant, or the applicant and the predecessor in title of the applicant, have continuously used the applicant’s trade mark for a period:

   (a)  beginning before the priority date for the registration of the other trade mark in respect of:

   (i)  the similar goods or closely related services; or

   (ii)  the similar services or closely related goods; and

   (b)  ending on the priority date for the registration of the applicant’s trade mark;

   the Registrar may not reject the application because of the existence of the           other trade mark.

   Section 10 - Definition of deceptively similar

   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.

   12.   In the SGP the Opponent particularises the s 44 ground of opposition as follows:

   The Opposed Trade Mark is substantially identical with or deceptively similar to prior Australian trade mark registrations, owned by the Opponent, which are registered in respect of (i) similar services or services of the same description as the services specified in the Opposed Application, and/or (ii) goods or services that are closely related to the services specified in the Opposed Application. These prior Australian trade mark registrations include the following:

   (Opponent’s Trade Marks)

   The Applicant has no basis for gaining acceptance of the Opposed Application under sections 44(3)(a), 44(3)(b) or 44(4) of the TMA.

   13.   To satisfy the s 44 ground of opposition the Opponent must establish that the Trade Mark is 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, and in respect of similar services or goods which are closely related to the Applicant’s Services. 

2. In the event that each of these requirements is satisfied it may still be possible for me to accept the application (or allow it to proceed to registration) if I am satisfied, pursuant to ss 44(3) and 44(4), that there has been honest concurrent use of the Trade Mark, other circumstances which would make acceptance of the Application for registration of the Trade Mark proper, or that the Applicant has continuously used the Trade Mark beginning before the priority date of the Opponent’s relied upon trade marks.

   15.   The Opponent’s Trade Marks 788234, 1111537, 1747948 1749330 and 1905820 all have a priority date earlier than the Relevant Date of the Trade Mark. [4]

   [4] See Annexure 1 for full details of these registrations.

   16.   The next consideration is whether the goods and/or services of the Opponent’s Trade Marks  are similar, or closely related to the Applicant’s Services.

   Comparison of Goods and Services

   17.   The comparison of goods and services for the purpose of s 44 is between the Applicant’s Services and the goods and/or services covered by the Opponent’s Trade Marks 788234, 1111537, 1747948 1749330 and 1905820.

   18.   Section 14 provides:

   Definition of similar goods and similar services

   (1) For the purposes of this Act, goods are similar to other goods:

   (a) if they are the same as the other goods; or

   (b) if they are of the same description as that of the other goods.

   (2) For the purposes of this Act, services are similar to other services:

   (a) if they are the same as the other services; or

   (b) if they are of the same description as that of the other services.

   19.   The factors relevant to the consideration of whether goods are similar include the nature, purpose and use, respective trade channels and whether the ordinary consumer of the goods would regard the goods as being from a single source.[5]

   [5] Re Jellenik’s Application [1946] RPC 59 (Romer J).

   20.   In Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd the Full Court set out the principles to be applied in determining the scope of the phrase ‘services of the same description’:

   The starting point in determining the scope of the phrase “services of the same description as that of [the registered services]” in s 120(2)(c) is the statement of principle in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 606 by Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ (notwithstanding that the question involved consideration of whether goods were goods of the same description), in these terms:

   There may be many matters to be considered apart from the inherent character of the goods [or services] in respect of which the application is made and some indication of what matters are relevant to this inquiry was given by Romer J. in In re Jellinek’s Application.  Romer J. thought it necessary to look beyond the nature of the goods [or services] in question and to compare not only their respective uses but also to examine the trade channels through which the commodities in question where bought and sold.  Shortly after the decision in Jellinek’s Case the Assistant‑Comptroller elaborated on the observations Romer J. in the following manner:  “In arriving at a decision upon this issue the reported cases show that I have to take account of a number of factors, including in particular the nature and characteristics of the goods [or services], their origin, their purpose, whether they are usually produced by one and the same manufacturer or distributed by the same wholesale houses, whether they are sold in the same shops over the same counters during the same seasons and to the same class or classes of customers, and whether by those engaged in their manufacture and distribution they are regarded as belonging to the same trade.  In the case of Jellinek’s Application, Romer J. classified these various factors under three heads, viz., the nature of the goods, the uses thereof, and the trade channels through which they are bought and sold.  No single consideration is conclusive in itself, and it has further been emphasised that the classifications contained in the schedules to the Trade Mark Rules are not a decisive criterion as to whether or not two sets of goods are ‘of the same description’”.[6] 

   [6] [2017] FCAFC 56, [333] (Greenwood, Besanko and Katzmann JJ) (‘Accor’).

   21.   The Full Court went on to describe the principles in the following terms:

   As to whether particular impugned services might properly be understood as services of the same description as services for which a trade mark is registered, the features to be considered are likely to include these considerations:

   (1)        The inherent character of each of the services for which the trade mark is registered.  That may emerge as a function of language but it is likely to be the subject of evidence:  for example, what does “an hotelier” actually do?  What precisely is involved in providing “property management services”?

   (2)        To whom are the services offered?

   (3)        How are they provided?

   (4)        How are they used?

   (5)        What is their purpose?

   (6)        Are they bundled together with other services?

   (7)        Are they differentiated by the functional level at which they are provided:  wholesale or retail?

   (8)         Where do they originate?

   (9)         What is the method of their communication to the relevant target audience:  is it predominantly by electronic means, domain names, websites, Twitter, Facebook or other means such as other trade brochures and journals?

   (10)        How closely contestable are the services in substance:  are they in the same market or trade?

   (11)       How might consumers of the services perceive the services:  see, for example, E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2009) 175 FCR 386, per Moore, Edmonds and Gilmour JJ at [71]‑[73].[7]

   [7] Accor ibid [339].

   22.   Whether goods are closely related to services (or vice versa) involves different considerations. In the Registrar of Trade Marks v Woolworths French J made the following observations:

   The term “closely related” recognises that goods and services are different things. There will be classes of goods which are similar to each other. There will also be classes of services which are similar to each other. But the word “similar” does not apply as between goods and services. So there must be some other form of relationship between the services covered by one mark and the goods covered by another to enable the goods or services in question to be described as “closely related”… it is a term of wider import than “similar”…[8]

   [8] [1999] FCA 1020, [37].

   23.   In the present case, the Applicant claims rideshare, taxi, passenger service, online booking passenger services, and carpooling service in class 39.  

   24.   The Opponent submits that its trade marks 1747948 and 1749330 cover providing online computer mapping services; mapping services, namely, providing a website and website links to geographical information, map images, and trip routing in class 42.

   25.   The Opponent submits that the Applicant’s Services utilise mapping services and trip routing to plan a trip. Geographical information including map images, and trip routing, are services which are provided to customers in the same trade channels, given rideshare services can be booked through online mapping services, and utilise mapping and trip routing.

   26.   The Opponent submits that its trade mark 1905820 covers providing online non-downloadable computer software for displaying geographical information, interactive geographic maps, satellite and arial images of earth and space, and ocean bathymetry in class 42.

   27.   The Opponent submits that the Applicant’s Services ultilise computer software for providing geographic information, and geographical maps, as part of its services to show the customer the planned journey. The Opponent submits that the purpose in using the online mapping services and ride sharing services is the same in terms of having the general purpose of using the services to travel to a particular location and obtain information associated with the journey. 

   28.   The Opponent submits that customers of the services claimed by the Applicant and the services outlined above covered in 1747948, 1749330 and 1905820 in class 42 are the same in that both services appeal to the same demographic – ride-sharing services are utilised by all age groups of the population, as are map applications.

   29.   The Opponent submits that the customers of the services are also the same in that the customers of both have the general purpose of using the services to travel to a particular location by a certain mode of transport and obtaining certain associated information such as the route, timeframe, and costs associated with travelling to that location.

   30.   The Opponent also submits that its trade marks 1747948 and 1749330 cover electronic storage of digital media, namely, data documents, text, photographs, images, music, graphics, audio, video and multimedia content in class 39. The Opponent submits that an online booking passenger service requires a repository of electronic data on the customer to work effectively.

   31.   In response the Applicant submits that the mere fact that services are rendered to the same persons or in the same industry does not make them services of the same description.

   32.   In my view, rideshare, taxi, passenger service, and carpooling services are all a type of transport service that offers a passenger an option to travel using a pre-booked vehicle. While these transport services may use digital business models and providers and users may ultilise navigational software services which provide geographical information, map images, and trip routing, the provision of these software services is no more than an incident to the provision of the transport service. The Opponent’s various mapping, non-downloadable software and geographical information services may be provided to consumers for different use cases, and may be utilised by other traders in the course of providing other services. However, the purpose of the Opponent’s services is ultimately to provide locational, mapping and geographical information to its consumers. This is in contrast to the Applicant’s Services which are provided specifically for the purpose of facilitating transport. There is a clear distinction between the different types of operations run by the parties and there is no evidence that these services are provided by the same traders. I do not find the class 42 services are similar.

   33.   In regard to the Opponent’s electronic storage services in class 39 being similar to the Applicant’s online booking passenger service, I note that while the Applicant’s online booking system would have digital storage requirements either provided in house or outsourced, the services involved in electronic storage have different characteristics to an online booking service, and the purposes of the respective services are clearly distinct. The Applicant’s Services are primarily for transport purposes while the Opponent’s services in Class 39 are provided to others for the purposes of storage of digital information and multimedia, and there is no evidence that these services are provided by the same traders.    

   34.   I have not found that the Applicant’s Services are similar or closely related to the services outlined by the Opponent. For completeness I find that none of the remaining goods or services covered by trade marks 788234, 1111537, 1747948 1749330 and 1905820 are similar or closely related to the Applicant’s Services for the same reasons.

   35.   The Opponent has not established the ground of opposition under s 44.

   Section 60

   60  Trade 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.

   36.   In the SGP the Opponent particularises the s 60 ground of opposition as follows:

   The Opponent’s search engine technology is widely used both in Australia and internationally and the GOOGLE trade mark is one of the most well recognisable and valuable trade marks in the world (worth an estimated $44 billion). The Opponent, its authorised users and/or predecessors in title have used one or more of the Opponent’s Trade Marks in Australia for several decades prior to the priority date (13 August 2021) of the Opposed Application, in relation to a wide array of goods and services (including in relation to computer and on-line personalised information services and the provision of geographic information and websites with links to trip routing). The Opponent also offers a range of other internet-related services under the Opponent’s Trade Marks. As a result of extensive use and promotion of the Opponent’s Trade Marks, the Opponent enjoys substantial and widespread goodwill and reputation in the Opponent’s Trade Marks which have been recognised by the Court as well-known in Australia.

   The Opponent, therefore, has developed a reputation in one or more of the Opponent’s Trade Marks, including those particularised above, as at the filing date of the Opposed Application.

   Consequently, because of this reputation, use of the Opposed Trade Mark would be likely to deceive or cause confusion.

   37.   To satisfy s 60 the Opponent must establish that the trade marks upon which it relies had a reputation in Australia at the priority date of the Trade Mark. The Opponent must then establish that because of that reputation, use of the Trade Mark would be likely to deceive or cause confusion.

   38.   In McCormick & Co Inc v McCormick, Kenny J asked what is intended by the word ‘reputation’ in s 60. Her Honour consulted the Macquarie Dictionary and on the basis of the definition provided concluded that it was ‘the recognition of the [trade mark] by the public generally’12F9F[9] and quoted with approval the following words of Lockhart J in Re ConAgra Inc v McCain Foods (Aust) Pty Ltd:

   [R]eputation within the jurisdiction may be proved by a variety of means including advertisements on television, or radio or in magazines and newspapers within the forum. It may be established by showing constant travel of people between other countries and the forum, and that people within the forum (whether residents there or persons simply visiting there from other countries) are exposed to the goods of the overseas owner…[10]

   [9] [2000] FCA 1335, [81].

   [10] [1992] FCA 159, [118].

   39.   Justice Kenny also referred to the Hugo Boss decision, where the Registrar’s delegate observed:

   [I]t is true that the assessment of the reputation of a trade mark goes far beyond mere examination of sale or turnover of goods sold under the trade mark and contemplation of the advertising and promotional figures.

   As regards a trade mark, its reputation derives both from the quantum of sales under that mark and also its esteem, or image, projected by that trade mark. The quantum sale, advertising and promotion contributes to the ‘recognition’ component of the trade mark’s reputation. The credit, image and values projected by a trade mark attaches to the ‘esteem’ component of the reputation as do the public events and other trader’s marks with which [the] owner of the trade marks in question chooses to associate the trade marks via sponsorship, cross-promotions, ‘contra deals’ and so forth.

   It follows that a trade mark used in relation to goods with comparatively low sales may have a high and strong reputation by virtue of the high credit or esteem in which it is held, or, conversely, that a trade mark which has very high sale may have a strong reputation notwithstanding the lack of esteem that attaches to it. The particular popular images, or sets of values, that attach to the trade mark are also, therefore, important parts of the reputation of the trade mark and may be as strong an association of the trade marks with the goods or services themselves.14F11F[11]

   [11] Hugo Boss AG v Jackson International Trading Co Kurt D Bruhl Gesellschaft MbH & Co KG (1999) 47 IPR 423, 436.

   40.   What constitutes a significant or substantial number of persons in the relevant market must be considered.[12] Justice Heerey in Le Cordon Bleu BV v Cordon Bleu International Ltee provided some guidance:

   What is “significant” or “substantial” will depend on the nature of the goods or services in question. For some highly specialised products, awareness among a few thousand persons, or even less, might be sufficient.F12F[13]

   [12] Liburb 1, Exhibit ML-3.

   [13] [2000] FCA 1587, [91], (albeit in relation to paragraph 28(a) of the now superseded Trade Marks Act 1955 (Cth)), (emphasis in original).

   41.   The trade marks of the Opponent which I am considering here are its GOOGLE trade marks being the ones particularised in Annexure 1 to this decision.

   42.   In Liburd 1, Ms Liburd states that the Opponent is a technology company and the word Google is a coined term which was created in 1997 by the Opponent’s founders. Ms Liburd states that the Opponent is responsible for internet related products and services such as the Google search engine, Google Maps, Google Earth, Google StreetView, GMAIL, Google Chrome, Google Ads, Google Play and You Tube.

   43.   Ms Liburd states that the Opponent has more than 150 offices in more than 60 counties around the globe including Australia[14] and employs over 150,0000 employees worldwide.  

   [14] Liburd 1. Exhibit ML-4

   44.   Ms Liburd states that since 2007 the Google brand has consistently been ranked one of the most well-known global brands in ranking by either/or Meaningful Brands,[15] Forbes,[16] BrandZ,[17] and/or Brand Finance.[18]  

   [15] Liburd 1, Exhibit ML-5.

   [16] Liburd 1, Exhibit ML-6.

   [17] Liburd 1, Exhibit ML-7.

   [18] Liburd 1, Exhibit ML-8.

   45.   Ms Liburd states that in December 2002 the Opponent launched its Google search engine in Australia via the website google.com.au. Exhibit ML-20 to Liburd 1 comprises a copy of an article entitled ‘Search Engine Market Share in Australia’ which shows that Google’s search engine had a 93.7% market share in Australia between January and December 2021.  Exhibit ML-12 to Liburd 1 comprises screenshots from the Internet Archive Service Wayback Machine regarding ‘Googlers in Australia’ dated 7 January 2021. The page states that by January 2021: 1.3 million Australian businesses made direct connections with customers using Google Search; there are over 100 Australian YouTube channel with more than 1 million subscribers; the Opponent has provided more than $20 million dollars’ worth of free Google Ads for Australian Ads customers, community organisations and government agencies; and over 500,000 Australians have been trained through its “Grow with Google” program.

   46.   Exhibit ML-13 to Liburd 1 comprises a copy of a report entitled Google’s Economic Impact in Australia, December 2020. The report states that by using Google Maps, each Australian transport business saves approximately 272 hours per year by optimising their trip navigation; it is estimated that the Opponent directly supports over 116,000 jobs in Australian businesses that use its products and generate a return on investment; and the total estimated economic benefit presented by the Opponent’s various product and services offerings in Australia is $39 billion a year.

   47.   Ms Liburd states that the Opponent has expended significant sums promoting its various products and services in Australia. Exhibit ML-27 to Liburd 1 is a copy of an article in the Australian Financial Review dated 3 June 2018 which states that the Opponent’s spend on television advertising in Australia alone was $11.3 million. Ms Liburd states that the Opponent promotes its products and services view news media, television, via the internet in email, blogging and online social networking services.

   48.   In my assessment, the evidence before me, establishes widespread and extensive use of the Opponent’s GOOGLE trade marks in both Australia and Internationally. As such I find that the Opponent’s GOOGLE trade marks have acquired a reputation amongst a significant number of Australian consumers in relation to its products and services at the Relevant Date.

   49.   It is not sufficient that the Opponent merely establishes that its GOOGLE trade marks have a reputation, the Register must also be satisfied that because of that reputation the use of the Trade Mark would be likely to deceive or cause confusion. This is linked to how similar the respective trade marks are. In Rogers Seller & Myhill Pty Ltd v Reece Pty Ltd the Delegate Lyons said:

   Confusion cannot arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent’s trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.

   What can be said then of section 60 as we now find it is that it comprehends that the trade marks under comparison might be quite dissimilar, and yet, taken in combination with the repute of the opponent’s trade mark (and possibly other factors), deception or confusion is still more likely than not. Put another way, section 60 now contemplates that an opponent may prevail because of the reputation in the mark on which it relies notwithstanding that the trade marks under comparison may even be quite dissimilar.[19]

   [19] [2010] ATMO 5, [39] to [40].

   50.   The Opponent argues that it is likely that consumers who see the Applicant’s Services offered under the Trade Mark would be likely to be deceived or confused that they were provided by the Opponent or that there was some association or connection between such services and the Opponent given: the significant reputation in the GOOGLE trade marks; the brand extension of the GOOGLE trade marks into a wide array of different goods and services; the obvious similarities between the trade marks; and the context in which the Trade Mark and its GOOGLE trade marks are used, that is, ridesharing and transportation services are often booked online, consumers may make typographical errors and review search results only cursorily.

   51.   In response the Applicant concedes that the evidence demonstrates that the GOOGLE trade marks have acquired a reputation in Australia amongst a significant number of consumers. That reputation however does not appear to extent to the provision of the Applicant’s Services, other than the provision of accessorial or assistive services in those industries through the navigational services provided through Google Maps.

   52.   In this case, the trade marks are similar in that both trade marks share the suffix OOGLE, however, Trade Mark starts with the letter K in comparison the Opponent’s GOOGLE trade mark start with the letter G.

   53.   While the goods and services are not required to be similar, I note the Opponent’s comments regarding the context in which the trade marks are used with the Applicant’s Services booked online, and that Google Maps offers access to other traders ridesharing services via a separate tab. However, I agree with the Applicant that the Opponent’s reputation does not extend to the provision of the Applicant’s Services. In addition to the differences between the Applicant’s Services and those associated with the Opponent’s Trade Marks discussed in relation to the s 44 grounds of opposition, the Opponent does not and has never offered the Applicant’s Services in Australia, nor is it in anyway likely that the reputation the Opponent has in respect of a piece of navigational software would lead to consumer confusion in respect of a rideshare service operating under a different trade mark.

   54.   Having regard to the markets within which each party operate and focus, the exceedingly well-known nature of the GOOGLE trade marks and the difference in the visual, aural and conceptual impression between those trade marks and the Trade Mark, I am not satisfied that there is a real tangle likelihood that consumers would be caused to wonder whether there is some connection between the GOOGLE trade marks and the Trade Mark.

   55.   The Opponent has not established the ground of opposition under s 60.

   Section 42(b)

   Section 42(b) of the Act provides:

   42 Trade 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.

   56. In the SGP the Opponent particularises the s 42(b) ground of opposition as follows:

   The Opponent has a prior reputation in the Opponent’s Trade Marks (or one or more of them), as particularised above in relation to the ground under section 60 of the Act.

   Because of that reputation, the similarity of the Opposed Trade Mark to the Opponent’s Trade Marks (or one or more of them) and the fact that they cover similar or closely related goods and/or services, use of the Opposed Trade Mark would be contrary to law. In particular, it would be likely to mislead or deceive consumers, including into the mistaken belief that:

   (a) there is a connection, affiliation or sponsorship between the Opponent and the Applicant; (b) there is a connection, approval or affiliation between the services of the Opposed Application and those of the Opponent;

   (c) the services of the Opposed Application and those of the Applicant are of the same quality or standard as those of the Opponent; or

   (d) the Opposed Application is part of the Opponent’s family of marks, and that the services of the Opposed Application are those of the Opponent.

   Use of the Opposed Trade Mark would, therefore, contravene ss 18 and 29 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and/or constitute the common law tort of passing off.

   In addition to its prior use and reputation rights in the Opponents’ Trade Marks and in the alternative, the GOOGLE mark has been recognised by the Court as well-known in Australia as set out above in the particulars in section 60 above. Use of the Opposed Trade Mark on any unrelated goods and services, would be likely to be taken as indicating a connection between those services and the Opponent, with a likely adverse effect on the interests of the Opponent in breach of s120(3) of the TMA and any use would therefore be contrary to law.

   57. As with all the grounds of opposition, the onus of proof rests with the Opponent and in that regard the case law on section 42(b) requires the Opponent to show that use of the Trade Mark would be, rather than could or might be contrary to law.[20]

   [20] Advantage Rent a Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683, [28] (Madgwick J).

   58. Section 18 of the Australian Consumer Law[21] (‘ACL’) is concerned with misleading or deceptive conduct, while s 29 of the ACL is concerned with false and misleading representations. Case law has made it plain that s 18 of the ACL imposes a more stringent test than that for deception or confusion under s 60.[22] In this matter, I have found that the Opponent has failed to establish a ground of opposition under s 60. Consequently, 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.

   [21] Competition and Consumer Act 2010 (Cth), sch 2.

   [22] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198. This case was decided under the superseded s 52 Trade Practices Act 1974 (Cth) (‘TPA’) the equivalent provision to the current s 18 of the ACL.

   59. In relation to s 29 of the ACL it has been held that where a trade mark does not offend s 18 of the ACL, neither will it offend s 29 of the ACL[23] nor will it constitutepassing off.[24]

   [23] In Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104, Beaumont J considered – in connection with the superseded TPA that ‘the Court’s conclusion on section 52 would necessarily carry with it a conclusion on section 53 (c) and (d).’ Sections 53(c)-(d) of the TPA are the equivalent provisions to ss 29(1)(g)-(h) of the ACL.

   [24] Re Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506, [40] (Hill J).

   60. The Opponent submits that the Trade Mark is contrary to law because it offended under s 120(3), which deals with the infringement of well-known trade marks. The Opponent relies on its submissions made in respect of its ground of opposition under s 60. Pursuant to s 125, an action for an infringement of a registered trade mark may be brought in a prescribed court or any other court that has jurisdiction to hear the action. An opposition proceeding before the Registrar is not a proceeding before a court. While this would not necessarily preclude consideration about whether use of the Trade Mark would amount to trade mark infringement, it would be redundant given the operation of ss 44 and 60 in an opposition under s 52.[25]

   [25] See Parkside Towbars Pty Ltd v Tow-Safe Pty Ltd[2011] ATMO 17, [38] (Hearing Officer Heath Wilson).

   61. The Opponent has not established the ground of opposition under s 42(b).

   Section 62A

   62A  Application made in bad faith

   The registration of a trade mark may be opposed on the ground that the application was made in bad faith.

   62.   In the SGP the Opponent particularises the s 62A ground of opposition as follows:

   The Opponent and its GOOGLE mark and family of GOOGLE trade marks are very well known (both within Australia and worldwide) – not only with regards to search engine services but a wide range of associated goods and services including the provision of geographic information and search, on-line and computer services (amongst other related goods and services). The Opponent repeats the particulars in relation to the grounds under sections 42(b) and 60 of the Act above.

   At all material times, the Applicant would or should have been aware of the Opponent’s very substantial use of and reputation in, the Opponent’s Trade Marks in Australia, including because the mark the subject of the Opposed Application is substantially identical to, or deceptively similar to the Opponent’s Trade Marks. The Applicant's conduct in selecting the Opposed Mark was:

   (a) exploitative of the Opponent's rights in the Opponent’s Trade Marks;

   (b) designed to acquire an unfair advantage for its business at the Opponent’s expense, including by:

   (i) alluding to the GOOGLE and GOOGLE family of marks; and/or

   (ii) attempting to reinforce the consumers’ association between the Opponent’s Trade Marks and the Opposed Trade Mark.

   The adoption and subsequent filing of the Opposed Trade Mark amounts to conduct that falls short of the acceptable standards of commercial behaviour and the Opposed Application was therefore made in bad faith.

   63. The Act provides no guidance as the meaning of the term ‘bad faith’. The Explanatory Memorandum to the Trade Marks Bill 2006 (Cth) provided that the new ground has been introduced to cater for situations (among others) ‘in which a person has deliberately set out to gain registration of a trade mark, or adopted a trade mark in bad faith’.

   64.   In DC Comics v Cheqout Pty Ltd (‘DC Comics’) Bennett J observed that all of the circumstances surrounding the application to register a trade mark are relevant.[26] Moreover, conduct after the filing of an application can be used to shed light on the Applicant’s subjective intent at the time of filing.[27]

   [26] [2013] FCA 478, [62].

   [27] Ibid, [71].

   65.   The test for bad faith incorporates subjective and objective elements. That is, I must consider what the Applicant actually knew at the filing date, and then consider whether, armed with that knowledge its decision to file the Trade Mark would be considered to be in bad faith by persons who adopt proper standards of behaviour in business. In Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) (‘Fry’) Dodds-Streeton J made the following comments, quoting from Harrisons’s Trade Mark Application:

   Clearly the court, when considering bad faith, cannot apply a purely subjective test, called by Lord Hutton “the Robin Hood test”. The dishonest person or one with low standards cannot be permitted to obtain trade mark registrations in circumstances where a person abiding by a reasonable standard would not. The registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading. Registration is not provided to help those with low moral standards.

   … The words “bad faith” suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[28]

   […]

   [28] [2012] FCA 81; Harrison’s Trade Mark Application [2004] EWCA Civ 1028.

   66.   Her Honour continued later in the same decision:

   The formulation in United Kingdom authority of bad faith as falling short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in a particular area is, in my view, an apt touchstone. An overly literal application may, however, tend to negate the relevance attributed to the applicant’s mental state in the combined test preferred in Harrison.

   Further, in my view, mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice, as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand, or unconscientious character.[29]

   [29] Fry (n 7) [2012] FCA 81, [147], [165]-[166].

   67.   The onus is on the Opponent to establish bad faith and it will not be found easily given the serious nature of the allegation.[30]

   [30] Hard Coffee Pty Ltd v Hard Coffee Main Beach Pty Ltd [2009] ATMO 26, [12] (Hearing Officer Nancarrow).

   68.   The Opponent submits that the Applicant originally launched its application under a different name, ‘CabMe’ and rebranded the application to Koogle in September 2021. The Opponent argues that the Applicant was clearly aware of its GOOGLE trade mark given its application was available on the Google Play platform. The Opponent argues that the Applicant’s advertising utilises the location icon used by Google Maps, and the Applicant uses similar advertising in connection with its Koogle application which suggests a conscious attempt by the Applicant to associate itself with the Opponent. The Opponent also argues that the fact that the Trade Mark differs from its GOOGLE trade mark in only one consonant strongly suggest a misspelling of its GOOGLE trade mark, and that because of its reputation in its GOOGLE trade mark it can be inferred that the Applicant applied for the Trade Mark to gain a benefit by appropriating its Google brand.

   69.   The Applicant argues that it chose the name Koogle due to the Australian sound of the name and was partly inspired by the name of a discontinued brand of food spread manufactured by Kraft, also called Koogle. The Applicant also argues that its advertising does not indicate any association with Google Maps, nor has the colour scheme for Google Maps application been utilised. In addition, the Applicant mapping feature is required for customers to be able to input their pick-up and delivery address, as well as for the tracking of their driver.

   70.   Both parties point to Annexure PC-1 in Chitkara which comprises an extract of the Applicant’s advertising for its Koogle application on Google Play dated 18 October 2022. In viewing this extract I have found that the images shown on various pages within the application including a mapping feature do not show any Google indicia being used.

   71.   Turning to other factors raised by the Opponent, I note that without more, mere awareness of another trade mark does not constitute bad faith, nor has the Opponent provided clear and cogent evidence demonstrating that the Applicant created the Trade Mark to serve as a misspelling of GOOGLE.

   72.   Overall, I find that the Opponent’s evidence does not point to any activity or actions taken by the Applicant that might be indicative of behaviour that is unscrupulous, underhanded or otherwise unconscientious in character. I am not satisfied that the application for the Trade Mark was made in bad faith.

   73.   The Opponent has not established the ground of opposition under s 62A.

   Decision

   74.   Section 55 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.

   75.   The Opponent has not established a ground of opposition. Accordingly, I decide that trade mark number 2202650 may proceed to registration one month from the date of this decision. If the Registrar is served with a notice of appeal, I direct that the disposition of the Application should be in accordance with the Court’s order or direction.

   Costs

   76. Both parties sought an award of costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Opponent under s 221 in line with Schedule 8 of the Regulations.

   Louise Tuohy

   Hearing Officer

   Delegate of the Registrar of Trade Marks

   15 February 2024

   Annexure 1

Trade mark number:	Opponent’s trade mark	Classes
788234	Class 9:  Computer hardware; computer software including computer software for searching, compiling, indexing and organizing information within individual workstations, personal computers or computer networks; computer software for electronic mail and facilitating workgroup communications over computer networks; computer software for creating indexes of information, web sites or other resources Class 38:  Providing electronic mail and workgroup communication services Class 42:  Computer services in this class, including on-line personalized information services; information extraction and data mining; providing access to proprietary collections of information; creating indexes of information, web sites and other information sources; providing information concerning a wide range of text, electronic documents, databases, graphics and audiovisual information
1111537 (IR Number 881006)	Class 9:  Computer software for searching, compiling, indexing and organizing information on computer networks; computer hardware, computer software for searching, compiling, indexing, and organizing information within individual workstations and personal computers; computer software for creating indexes of information, indexes of web sites and indexes of other information resources; mouse pads Class 38:  Providing multiple user access to proprietary collections of information by means of global computer information networks Class 42:  Computer services, namely, providing software interfaces available over a network in order to create personalized on-line information services; extraction and retrieval of information and data mining by means of global computer networks; creating indexes of information, indexes of web sites and indexes of other information sources in connection with global computer network; providing information from searchable indexes and databases of information, including text, electronic documents, databases, graphic and audio visual information, by means of global computer information networks
1747948	Class 9:  downloadable software for creating indexes of information, indexes of web sites, and indexes of other information resources; downloadable software for mobile phones and mobile devices for detecting a user's location and displaying relevant local information of general interest; downloadable software for mobile phones and mobile devices that allows the user to search the phone or device's content for information, contacts, and applications; downloadable software for mobile phones and mobile devices that allows the user to search the Internet for information of general interest; computer hardware; battery chargers; power adapters Class 25:  clothing, namely, shirts, t-shirts, hats, caps, children's clothing, namely, t-shirts Class 35:  dissemination of advertising for others via the Internet; on-line retail store services featuring consumer goods of others; advertising and promoting the goods and services of others via a global computer network; promoting the goods and services of others by providing a website featuring coupons, offers, rebates, reward cards, consumer reviews, links to the retail websites of others, online catalogs featuring a wide variety of consumer goods of others, comparison shopping, and discount information; providing commercial assistance to advertisers in creating, managing, and organizing online advertising and online product listings Class 36:  charitable fundraising; providing grants to charitable organizations; financial services, namely, providing stock, bond, commodity, index, futures, options, securities, and currency prices and market information; financial services, namely, providing a web site with information concerning stocks, bonds, commodities, indexes, futures, options, securities, and currency prices, and where users can post ratings, reviews and recommendations on the same; financial transaction processing services, namely, clearing and reconciling financial transactions via a global computer network; bill payment services Class 38:  telecommunication services, namely, communications via multinational telecommunication networks; telecommunications services, namely, telecommunications access services; data transmission and reception services via telecommunication means; electronic exchange of voice, data, and graphics accessible via computer and telecommunication networks; providing multiple-user access to a global computer information network; internet cafe services, namely, providing telecommunications connections to the internet in a cafe environment; providing online bulletin boards for transmission of messages among users in the field of general interest; providing online discussion groups for transmission of messages among users in the field of general interest; electronic mail services; workgroup communications services over computer networks; instant messaging services; voice over ip services; communications by computer terminals; wireless broadband communication services; mobile phone communication services Class 39:  electronic storage of digital media, namely, data, documents, text, photographs, images, music, graphics, audio, video, and multimedia content Class 42:  provision of search engines for the Internet; providing e-mail authentication services, namely, providing an online service that allows users to sign on to multiple third party websites using a single user name and password; computer services; computer services in the nature of customized web pages featuring user defined information, personal profiles, and information; providing on-line non-downloadable software; providing on-line non-downloadable software for use in database management, for use as a spreadsheet, and for word processing; providing on-line non-downloadable computer software for tracking documents over computer networks, intranets and the Internet; providing on-line non-downloadable software for creating and maintaining websites and blogs; providing on-line non-downloadable software for document collaboration and revision tracking; providing on-line non-downloadable software for granting and controlling access to documents; providing on-line non-downloadable software for managing individual and group calendars and schedules; providing on-line non-downloadable software featuring online storage of documents and databases; providing on-line non-downloadable software for language translation; providing on-line computer mapping services; mapping services, namely, providing a website and website links to geographic information, map images, and trip routing; providing online non-downloadable software for tracking, managing, and optimizing advertising and promotional campaigns, and calculating return on investment in connection with the same; providing online non-downloadable software for tracking website traffic, e-commerce activity, customer loyalty, and sales conversion rates; providing online non-downloadable software for optimizing website navigation; providing online non-downloadable software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links in real time; technical support services, namely troubleshooting of problems of software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links; design and development services for others of software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links; technical support and consulting services related to all of the foregoing; computer consultation services
1749330	Class 9: Downloadable software for creating indexes of information, indexes of web sites, and indexes of other information resources; downloadable software for mobile phones and mobile devices for detecting a user's location and displaying relevant local information of general interest; downloadable software for mobile phones and mobile devices that allows the user to search the phone or device's content for information, contacts, and applications; downloadable software for mobile phones and mobile devices that allows the user to search the Internet for information of general interest; computer hardware; battery chargers; power adapters Class 25:  Clothing, namely, shirts, t-shirts, hats, caps, children's clothing, namely, t-shirts Class 35:  Dissemination of advertising for others via the Internet; on-line retail store services featuring consumer goods of others; advertising and promoting the goods and services of others via a global computer network; promoting the goods and services of others by providing a website featuring coupons, offers, rebates, reward cards, consumer reviews, links to the retail websites of others, online catalogs featuring a wide variety of consumer goods of others, comparison shopping, and discount information; providing commercial assistance to advertisers in creating, managing, and organizing online advertising and online product listings Class 36:  Charitable fundraising; providing grants to charitable organizations; financial services, namely, providing stock, bond, commodity, index, futures, options, securities, and currency prices and market information; financial services, namely, providing a web site with information concerning stocks, bonds, commodities, indexes, futures, options, securities, and currency prices, and where users can post ratings, reviews and recommendations on the same; financial transaction processing services, namely, clearing and reconciling financial transactions via a global computer network; bill payment services Class 38:   Telecommunication services, namely, communications via multinational telecommunication networks; telecommunications services, namely, telecommunications access services; data transmission and reception services via telecommunication means; electronic exchange of voice, data, and graphics accessible via computer and telecommunication networks; providing multiple-user access to a global computer information network; internet cafe services, namely, providing telecommunications connections to the internet in a cafe environment; providing online bulletin boards for transmission of messages among users in the field of general interest; providing online discussion groups for transmission of messages among users in the field of general interest; electronic mail services; workgroup communications services over computer networks; instant messaging services; voice over ip services; communications by computer terminals; wireless broadband communication services; mobile phone communication services Class 39: Electronic storage of digital media, namely, data, documents, text, photographs, images, music, graphics, audio, video, and multimedia content Class 42:  Provision of search engines for the Internet; providing e-mail authentication services, namely, providing an online service that allows users to sign on to multiple third party websites using a single user name and password; computer services; computer services in the nature of customized web pages featuring user defined information, personal profiles, and information; providing on-line non-downloadable software; providing on-line non-downloadable software for use in database management, for use as a spreadsheet, and for word processing; providing on-line non-downloadable computer software for tracking documents over computer networks, intranets and the Internet; providing on-line non-downloadable software for creating and maintaining websites and blogs; providing on-line non-downloadable software for document collaboration and revision tracking; providing on-line non-downloadable software for granting and controlling access to documents; providing on-line non-downloadable software for managing individual and group calendars and schedules; providing on-line non-downloadable software featuring online storage of documents and databases; providing on-line non-downloadable software for language translation; providing on-line computer mapping services; mapping services, namely, providing a website and website links to geographic information, map images, and trip routing; providing online non-downloadable software for tracking, managing, and optimizing advertising and promotional campaigns, and calculating return on investment in connection with the same; providing online non-downloadable software for tracking website traffic, e-commerce activity, customer loyalty, and sales conversion rates; providing online non-downloadable software for optimizing website navigation; providing online non-downloadable software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links in real time; technical support services, namely troubleshooting of problems of software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links; design and development services for others of software for managing, collecting, monitoring and analyzing web, blog and other online site traffic, user preferences and links; technical support and consulting services related to all of the foregoing; computer consultation services
1905820	Class 9:  Software used for the control of voice controlled information and communication devices; software for providing a personal voice-enabled digital assistant; voice recognition software; software for accessing and searching online databases and websites; software for searching a user's mobile phone, computer, tablet, or other electronic communication device for documents, files, and other stored information on command; software for providing personal concierge services for others initiated by voice-controlled commands via a mobile phone, computer, tablet, or other electronic communication device, namely adding and accessing calendar appointments, alarms, timers, reminders, and making restaurant, travel, and hotel reservations; downloadable software for mobile phones and mobile devices for detecting a user's location and displaying relevant local information of general interest; downloadable software for mobile phones and mobile devices that allows the user to search the phone or device's content for information, contacts, and applications; downloadable software for mobile phones and mobile devices that allows the user to search the Internet for information of general interest; Computer software for accessing and searching online databases and websites using image capture; character recognition software; image recognition software; software for searching a user's mobile phone, computer, tablet, or other electronic communication device, namely, wearable computer peripherals, for data, graphics, files and images; Downloadable computer software for providing geographic information, interactive geographic maps, satellite and aerial images of earth and space, and ocean bathymetry; downloadable computer software for accessing satellite imagery on global computer networks, mobile devices and applications; Electrical apparatus and instruments, namely, mobile telephones, smart card readers, and proximity payment processing devices all using near field communication technology for facilitating commercial transactions through electronic means via wireless networks, global computer networks and mobile telecommunication devices; Near Field Communication (NFC) technology-enabled devices; Near Field Communication (NFC) technology-enabled readers; computer software for facilitating commercial transactions through electronic means via wireless networks, global computer networks and mobile telecommunication devices; computer software, namely, electronic financial platform that accommodates multiple types of payment and debt transactions in an integrated mobile device and web based environment; computer software for use in connection with the electronic storage, transmission, presentation, verification, authentication, and redemption of coupons, rebates, discounts, incentives, and special offers; computer software for use in connection with consumer loyalty programs and loyalty cards used to access and use loyalty points; Data processing equipment, computers; Routers; Loud Speakers; Wireless indoor and outdoor speakers; Loudspeaker systems; Voice controlled audio speakers; Audio Speakers controlled by mobile applications; Home automation control device; Stand alone information device, namely, voice and manual controlled audio speakers with personal digital assistant capabilities for streaming and playing audio, video, and multimedia content, for controlling televisions, monitors, gaming systems, DVD Players, portable media players, and digital media streaming devices; Computer hardware for controlling home automation systems, namely, lighting, appliances, heating and air conditioning units, alarms and other safety equipment, home monitoring equipment; Stand alone information device, namely, voice and manual controlled audio speakers with personal digital assistant capabilities for accessing and searching online databases, websites, mobile phones, computers, tablets, smart phones, handheld computers, portable computers for documents, files, and other stored information on command; Stand alone information device, namely, voice and manual controlled audio speakers with personal digital assistant capabilities for providing personal concierge services for others initiated by voice-controlled commands via a mobile phone, computer, tablet, smart phone, handheld computer, portable computer, namely, adding and accessing calendar appointments, alarms, timers, reminders and making restaurant, travel, and hotel reservations; electronic devices for providing access to the Internet, viewing information on global computer networks, voice command and recognition, speech-to-text conversion, personal information management, voice and data transmission, and hands-free use and remote control of electronic devices; Computer software for accessing and transmitting data and content among consumer electronics devices and displays; computer peripherals for accessing and transmitting data and content among consumer electronics devices and displays; Audio speakers; earbuds; earphones; headphones; accessory ear cushions for earbuds, earphones, and headphones; accessory ear pads for earbuds, earphones, and headphones; microphones; remote controls devices; remote controls for controlling mobile phones and tablet computers; remote controls for mobile phones and tablet computers for controlling volume, music, phone calls, and transmitting data; apparatus for recording, transmitting, recognizing, processing, and reproduction of sound; power adapters for earphones, earbuds, and charging case; computer software for facial and object recognition; computer software for automating capturing of photos and videos; cameras; wireless cameras; digital cameras; video cameras; wearable cameras; cameras for automatically capturing, selecting, and transferring photos and videos; cameras for recording and transmitting videos and photos to mobile phones, portable media players, and handheld computers; accessories for cameras, namely fasteners, charging cables, and cases; computer software for transferring, recording, capturing, storing, viewing, editing, processing, automatically selecting, and sharing videos and photos; cases and protective covers for mobile phones, smartphones, cameras, earphones, earbuds, headphones, tablets, headsets for virtual and augmented reality, and laptops; carrying cases and sleeves for mobile phones, smartphones, cameras, earphones, earbuds, headphones, tablets, headsets for virtual and augmented reality, and laptops; carrying cases and protective cases featuring battery charging devices, specially adapted for use with earbuds, earphones, and headphones; specially adapted carrying and charging cases featuring power supply connectors and battery charging devices for charging earphones and earbuds; protective covers for mobile phones, smartphones, and tablets; bumpers for mobile phones, smartphones, and tablets; camera accessories for mobile phones, smartphones, and tablets, namely lenses, tripods, cases with built-in lenses, mounting plates, flash, and remotes; accessories for virtual reality devices, namely padding replacements; hands-free devices for mobile phones, smartphones, and tablets; headsets; smart watches; accessories for smart watches, including watchbands, straps and covers; keyboards; chargers; car chargers; cases for chargers; battery chargers for earbuds, earphones, and headphones; charging cases; batteries; power cables and adapters; cables; electric charging cables for earphones, earbuds, headphones, and charging cases; screen protectors; interchangeable metal and fabric bases for voice activated speakers and wireless routers; computer software for transmission and display of digital content, audio works, visual works, audiovisual works, electronic publications, books, movies, and music; computer software for browsing and accessing digital content, computer software, computer games, audio works, visual works, audiovisual works, electronic publications, books, movies, and music; software for virtual and augmented reality; virtual reality headsets and controllers Class 35:  Providing information about employment opportunities and content about employment via an online searchable database; providing information relating to job seekers via an online resume database; providing information relating to job vacancies, the location of such vacancies, and the identity of employers and recruiters searching for candidates via an online searchable database; providing information about resumes of prospective employees via an online searchable database; providing information about job seeking via an interactive website; online retail store services featuring computer software programs, computer games, audio recordings, electronic publications, books, movies, music, videos, and TV programs; Providing information that enables users to sign up for job alerts online and apply via a website; Providing information that enables employers to select which candidates best meet their job vacancy criteria based on resumes and word search via a website Class 36:  Financial affairs; financial transaction services; provision of electronic contactless payment services; financial transaction services, namely, providing secure commercial transactions and payment options using a mobile device at a point of sale; electronic credit card transaction processing, debit card services, pre-paid purchase card services, namely, processing electronic payments made through prepaid cards and processing electronic payment through pre-paid cards, processing electronic payments made through loyalty cards; electronic payment, namely, electronic processing and transmission of credit card transactions, wireless wallets, mobile wallets, electronic wallets, wireless credit, debit and prepared card transactions, credit card and transaction processing terminal services using near field communication (NFC) technology Class 38:  Telecommunication services, namely, transmission of e-mails, text messages, phone calls, voice, data, graphics, images, audio and video clips by means of telecommunications networks, wireless communication networks, and the Internet Class 42:  Computer services, namely, providing a search engine for obtaining data, graphics, files and images using non-downloadable image recognition software; provision of Internet search engines; provision of Internet search engines; providing online non-downloadable character recognition software; providing online non-downloadable image recognition software; providing online non-downloadable software for extracting and retrieving information and data for others by means of global computer networks; providing online non-downloadable software for searching a user's mobile phone, computer, tablet, or other electronic communication device, namely, wearable computer peripherals, for data, graphics, files and images; Providing on-line non-downloadable software for providing a personal voice-enabled digital assistant; Providing on-line non-downloadable voice recognition software; computer services, namely, providing a voice-controlled search engine for obtaining data, images, audio and video via a global computer network; provision of Internet search engines; Providing on-line non-downloadable software used to provide voice-controlled information and communications; Hosting a website that enables users to sign up for job alerts online and apply for jobs; Hosting a website that enables employers to select which candidates best meet their job vacancy criteria based on resumes and word searches; Providing geographic information, interactive geographic maps, online non-downloadable software for accessing satellite and aerial images of earth and space, and ocean bathymetry, via a website; providing online non-downloadable computer software for displaying geographic information, interactive geographic maps, satellite and aerial images of earth and space, and ocean bathymetry; Design and development of computer hardware and software; Providing temporary use of online non-downloadable software for streaming and playing audio, video, and multimedia content, and for controlling televisions, monitors, gaming systems, DVD players, portable media players, and digital media streaming devices; Providing temporary use of online non-downloadable software for use in providing personal concierge services for others by voice-controlled commands via a mobile phone, computer, tablet, smart phone, handheld computer, portable computer, namely, adding and accessing calendar appointments, alarms, timers, reminders, and making restaurant, travel, and hotel reservations; Providing temporary use of online non-downloadable software for controlling home automation systems, namely, lighting, appliances, heating and air conditioning units, alarms and other safety equipment, home monitoring equipment; Technical support services, namely, troubleshooting in the nature of diagnosing computer hardware and software problems; Computer technology support services, namely, help desk services; Technical support services, namely, troubleshooting of computer software problems; Computer services, namely, cloud hosting provider services; Computer services, namely, integration of private and public cloud computing environments; Consulting services in the field of cloud computing technology, infrastructure-as-a-service (IAAS) cloud computing technology, software-as-a-service (SAAS) cloud computing technology, and platform-as-a-service (PAAS) cloud computing technology; Providing virtual computer systems and virtual computer environments through cloud computing; Technical support services, namely, remote and on-site infrastructure management services for monitoring, administration and management of public and private cloud computing IT and application systems; Application service provider (ASP), namely, hosting computer software applications of others; Cloud computing featuring software for use in creating web applications, syncing, storing, archiving and backing-up data to cloud servers; Computer software for managing, networking, collaborating within and providing remote access to databases; Cloud computing featuring software for use in deploying virtual machines to a cloud computing platform; Cloud computing featuring software for use in sharing data, creating data visualizations, data processing, and analyzing data; Cloud computing featuring software for use in administration of computer local area networks management of computer applications and computer hardware, and computer application distribution; Cloud computing featuring software for use in managing online projects, developing predictive digital marketing models, managing and facilitating online conferences, meetings, demonstrations, tours, presentations and interactive discussions; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for creating web applications syncing, storing, archiving and backing-up data to cloud servers; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for managing, networking, collaborating within and providing remote access to databases; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for deploying virtual machines to a cloud computing platform; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for sharing data, creating data visualizations, data processing, and analyzing data; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for administration of computer local area networks management of computer applications and computer hardware, and computer application distribution; Platform-as-a-service (PAAS), Infrastructure-as-a-service (IAAS) and Software-as-a-service (SAAS) services featuring computer software platforms for managing online projects, developing predictive digital marketing models, managing and facilitating online conferences, meetings, demonstrations, tours, presentations and interactive discussions; Computer services, namely, creating cloud-based indexes of information; Providing non-downloadable computer software for use as an application programming interface (API) for use in the fields of artificial intelligence, natural language processing, image content analysis, speech recognition, deep learning, high performance computing, distributed computing, virtualization, machine learning, cluster computing, internet of things, and container management; Electronic data storage, namely, storage and archival of data, electronic media, and digital content; Cloud computing and data center services for data backup and disaster recovery purposes, namely, electronic storage of data and storage services for archiving electronic data; Hosting websites for the storage of digital content; Electronic data storage services, namely, providing remote cloud-based server storage to others; Technical consulting services in the field of electronic data storage and archiving of electronic data for others; Infrastructure as a service (IAAS), namely, providing remotely accessible electronic data storage; Electronic data storage services in the nature of technical management of virtual infrastructure storage services; providing temporary use of non-downloadable computer software for browsing and accessing digital content, computer software programs, audio works, visual works, audiovisual works, electronic publications, books, movies, and music; providing temporary use of non-downloadable computer software for transmission and display of digital content, audio works, visual works, audiovisual works, electronic publications, books, movies, and music; Hosting an online searchable database featuring employment opportunities and content about employment; Hosting an online resume database; Hosting an online searchable database relating to job vacancies, the location of such vacancies, and the indentity of employers and recruiters searching for candidates; Hosting an online searchable database of resumes of prospective employees; Hosting an interactive website about job seeking; Technical consulting services in the field of electronic data storage for others in the nature of historical records and documents