Grater Seven Pty Limited v Sizzlers Restaurants International, Inc

[1996] ATMO 58

TRADE MARKS ACT 1955

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

Re:     Opposition by SIZZLER RESTAURANTS INTERNATIONAL, INC. to the registration of Trade Mark application number 577569 in the name of
           GRATER SEVEN PTY LIMITED

On 29 April 1996 I issued a decision in relation to the above opposition in which I allowed the trade mark applicant two months to amend the specification of goods of the application in order to avoid an objection to registration of the trade mark based on s33 of the Trade Marks Act 1955.  I reserved my decision on the matter of costs until the fate of the application should be known.  The trade mark applicant has now consented to the proposed amendment as a result of which the trade mark may now be registered.

Both parties made written submissions on the matter of costs, the solicitors for the applicant arguing that the applicant was substantially successful while the attorney for the opponent submitted that the opponent was successful in as much as the applicant was required to restrict its specification of goods.  It is true that both parties were partly successful and also partly unsuccessful.  As I cannot find an appropriate basis in these circumstances on which to apportion costs I consider it best that I rule that each side should bear its own costs.

Michael Homann
Hearing Officer

8 November 1996