GS1 Australia Ltd

[2012] ATMO 123

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1369337(16,35,39,42) - BARCODE IMAGE- in the name of GS1 Australia Ltd.

Delegate:

Nicole Worth

Representation:

Applicant: Ed Heerey of Counsel, instructed by Tim Clark of Piper Alderman Lawyers.

Decision:

2012 ATMO 123

Section 33 ex parte proceedings: section 41 – trade mark not inherently adapted to distinguish – use does not show sign has acquired distinctiveness as a trade mark – application rejected.

Background

1. On 28 June 2010 GS1 Australia Ltd (‘the Applicant’) filed an application to register a trade mark, relevant details of which are below:

   Trade Mark:

   Priority Date:  28 June 2010

   Endorsement: When the trade mark is used in respect of an item, the numerals after the first two numerals ‘9’ and ‘3’ will be changed to accord with the item to which it relates and the symbols will be changed to reflect those change in numerals in accordance with ISO Standard 15420: “information technology; automatic identification and data capture techniques; barcode symbology specifications”.

   Goods and Services:

   Class 16: Printed matter.

   Class 35: Business management services; business administration services; inventory control, management and preparation services; location and tracking of goods; administration, advisory, agency, appraisal, analysis, assistance, consultancy, demonstration, dissemination, distribution (not being transport services), evaluation, forecasting, information (including online and over a global computer network), investigation, management, organisation, planning, preparation, production; promotion (for others), referral, rental, research and support services (all not being in other classes) in relation to all of the foregoing; all the foregoing including in relation to supply chain management solutions, data synchronisation systems and bar coding.

   Class 39: Advisory, agency, brokerage, consultancy, distribution, information (including online and over a global computer network), management, organisation, planning, rental, reporting and support services (all not being in other classes); all the foregoing including in relation to supply chain management solutions, data synchronisation systems and bar coding in so far as they relate to transport and packaging, freighting and storage services in relation to goods.

   Class 42: Accreditation for and certification of quality or standards; advisory, analysis, consultancy, design, evaluation, information (including online and over a global computer network), investigation, licensing, project management, planning, preparation, rental, research services (all not being in other classes) in relation to all of the foregoing; all the foregoing including in relation to supply chain management solutions, data synchronisation systems and bar coding by way of computer systems; administration of scientific services (including computer services in this class).

2. The application was examined as required by section 31 of the Trade Marks Act 1995 (‘the Act’), and grounds for rejecting it were raised under subsections 41(5) (in respect of services) and 41(6) (in respect of goods) of the Act. The basis for the objections was that “other traders should be able to use a similar image of a barcode and wording in connection with goods or services similar to [the Applicant’s]”.

3. Despite submissions from the Applicant’s attorneys and evidence in support of the application (described below), the grounds for rejection were maintained in a second examination report. As a consequence the Applicant requested that it be heard, and the matter came before me as a delegate of the Registrar of Trade Marks in Melbourne on 20 September 2012. In the lead up to the hearing the Applicant filed further evidence in support of its application, and at the hearing it was represented by Ed Heerey of Counsel, who was instructed by Tim Clark of Piper Alderman Lawyers.

Evidence and submissions

1. The evidence filed in support of the application comprises:

• Statutory declaration of Susanne Schmid, the Applicant’s General Manager of Knowledge & Standards, undated. I note that the declaration was filed on 21 November 2011.

• Statutory declaration of Ian Dunn, Senior Business Manager Trade Relations, Woolworths Limited, dated 28 June 2011 (‘Dunn 1’).

• Statutory declaration of Michael Leonard Haire, General Manager eData Administration for Metcash, dated 7 July 2011 (‘Haire 1’).

• Statutory declaration of John LaVacca, Vice President for IBM Global Business Services, dated 1 July 2011 (‘LaVacca’).

• Statutory declaration of Russel Stucki, Chairman of the Board of the Applicant, dated 1 August 2011.

Further Evidence:

• Statutory declaration of Peter Chambers, the Applicant’s General Manager of Operational Initiatives, with exhibits PC1 and PC2, dated 12 September 2012.

• Further statutory declaration of Ian Dunn dated 10 September 2012 (‘Dunn 2’).

• Further statutory declaration of Michael Leonard Haire dated 11 September 2012 (‘Haire 2’).

• Statutory declaration of David Hix, Supply Chain Manager for Nestle Australia Limited, dated 13 September 2012 (‘Hix’).

• Further statutory declaration of Peter Chambers with exhibit PC1 dated 17 September 2012.

• Statutory declaration of Timothy Ewan Clark, solicitor and Partner with Piper Alderman law firm, with exhibit TEC 1, dated 18 September 2012.

1. Ms Schmid’s declaration outlines the history and nature of the Applicant. The Applicant is a non-profit entity which locally administers a global system of identification and communication utilizing numbers and ‘EAN symbols’ (being vertical bars of varying thicknesses which represent numbers). In this decision I will refer to the number and EAN symbol combinations as barcodes.

2. The multi-national barcode system is the result of the development of the Universal Product Code barcode system in the United States of America and of the European Article Number barcode system in Europe, collectively now known as the GS1 System. GS1 has its headquarters in Brussels, and the GS1 system is designed to improve supply chain management by, inter alia, allocating unique barcodes to identify products, assets, locations, and other trade items.

3. GS1 member organizations, such as the Applicant, exist in over 100 countries and locally administer the GS1 system by, amongst other things, being responsible for issuing barcodes to individuals and organizations who subscribe. Subscribers pay a fee and are allocated a number or numbers unique to their product/asset/etc which will be represented as a barcode and (usually, it appears) be affixed to that product/asset/etc by way of packaging or printed labels.

4. The barcode is a representation of data that is readable by an optical machine, allowing for automatic capturing of information. One of the types of barcodes issued by the Applicant is the ‘EAN-13’ barcode, such as that applied for as the trade mark. It is a barcode which represents a ‘Global Trade Item Number’, which in turn consists of a series of thirteen numbers that represent:

   ·     the country of origin of the GS1 member organisation that allocated the number,

   ·     the entity or brand to whom the number was issued,

   ·     the specific product or item to which the number is being applied, and

   ·     a ‘check digit’ to facilitate data scanning and scanning accuracy.

5. All ‘Global Trade Item Numbers’ allocated by the Applicant begin with the numerals ‘9’ and ‘3’, because the prefix ‘93’ is the GS1 code for ‘Australia’. The Applicant has been issuing such numbers with the prefix ‘93’ since 1978. The number of subscribers and ‘Global Trade Item Numbers’ allocated by the Applicant is impressive.

6. There is no evidence which shows the sign being applied for in use, rather the remaining evidence goes to the question of whether the relevant market identifies it as distinctive of the Applicant. To this end, the declarations of Mr. Chambers explain that on 3 September 2012 he caused a questionnaire to be sent by the Applicant to “over 25” commercial entities engaged in the use of barcodes and which are subscribers. The exhibits to Mr. Chambers’ declarations show the questionnaire that was sent and the responses received.

7. The questionnaire requires the respondent to identify themselves and their position in their company, then to answer the questions:

   1)When you see a barcode starting with the numbers “93”, does that signify any particular organisation who allocated that barcode number? [The respondent was then to circle ‘yes’ or ‘no’]

   2)   If yes, who is that organisation?

8. Fourteen responses to the questionnaire are exhibited, including from representatives of household names such as Schweppes, OneSteel, Mitre 10, Kimberly-Clark, Bunnings and Coca-Cola Amatil[1]. All of them identify GS1 as the organization signified as having allocated a bar code beginning with the numbers ‘93’.

   [1] I note that the response from J.R. McGuire of Coca-Cola Amatil circles both ‘yes’ and ‘no’, but that ‘GS1 Australia’ is written in response to the question “If yes, who is that organisation”.

9. I will refer to the remaining declarations as ‘trade declarations’[2]. The trade declarations indicate that the declarants’ businesses rely heavily upon the GS1 system and variously state of the ‘93’ prefix:

   “…the 93 prefix has become synonymous with Australian products not only in our stores but across many other functions where secure and reliable identification must be guaranteed”[3]

   “…almost all of our Australian manufacturers have unique global company prefix [sic] beginning with “93” and the testing process by GS1 Australia additionally verifies that the brand owner is the proper licensee of that range…the 93 prefix has become synonymous with Australian products not only in the stores we supply but across a number of retail operations”[4]

   “I support the use of the 93 prefix for Australian products across the supply chain and to verify that the brand owner is the proper licensee of the range”[5]

   “When I see a barcode starting with the numbers “93”, it signifies that it is a barcode from GS1 Australia…If Woolworths were to adopt a new product from a supplier, Woolworths would require that the “93” barcode be tested and certified. I would expect that to be done by GS1 Australia, and Woolworths will only accept a product made in Australia if certification by GS1 Australia is provided”[6]

   “When I see a barcode starting with the numbers “93”, it indicates that GS1 Australia issued that number and that number is owned by GS1 Australia. Anything that has the “93” at the start of the barcode indicates that it’s the product of an Australian based company and that the barcode has been allocated by GS1 Australia”[7]

   “I recognise a barcode starting with the number “93” as the number allocated or given by GS1 Australia, the first 2 digits “93” identify GS1 Australia. I recognise GS1 Australia as the sole organisation responsible for accrediting or certifying that barcode.”[8]

   [2] The declaration of Timothy Ewan Clark explains that the exhibited draft trade declaration by Jeffrey Robert McGuire, of Coca-Cola Amatil, is unsigned but that it reflects an interview held between the two prior to the declaration being prepared. Mr. Clark attempted to contact Mr. McGuire to affirm the declaration had been duly signed, however Mr. McGuire was apparently on leave and uncontactable at that time. Mr. Clark declares that Mr. McGuire’s response to the questionnaire is consistent with the draft declaration. Despite this, the unsigned draft declaration will necessarily carry less weight.

   [3] Dunn 1.

   [4] Haire 1.

   [5] LaVacca.

   [6] Dunn 2.

   [7] Haire 2.

   [8] Hix.

10. Lastly, the declaration of Russel Stucki explains that prior to his being the Chairman of the Board of the Applicant, he had a long career in retail including senior roles in the grocery industry (such as at Coles Myer). He observed in Hong Kong that there was far less industry adoption of the GS1 system and awareness of its value, but that products coming from Australia were readily identifiable by the GS1 number allocation and they could be relied upon to “conform to standards”. After indicating the growth in users of the GS1 system, he concludes that “with this many current users of the GS1 System, it highlights the need to protect the integrity of the GS1 System – any fundamental shift in this will greatly adversely affect Australian industry and the supply chain, and the consumer in particular”.

11. Counsel for the Applicant summarises its submissions as:

    1. The Applicant presses for acceptance of the Application in respect of the specified services (classes 35, 39 and 42) but not the specified goods (class 16).

    2. The use of the digits “93” a the commencement of a barcode is not descriptive of barcode allocation, supply chain management or data synchronisation services. Further, there is nothing in the registration of “93” as the commencing digits in a barcode to prevent third parties from distinctively describing their own barcode allocation, supply chain management or data synchronisation services, and the question arises why such third parties would wish, without improper motive, to allocate 13 digit barcodes commencing with the digits “93” (a tiny proportion of the more than 1 000,000,000,000 potential combinations) except for the obvious goal of encouraging the false perception of approval by or association with the Applicant.

    3. So, properly understood, it is clear that a mark consisting of “93” as the commencing digits in a 13 digit barcode is inherently adapted to distinguish the Applicant’s barcode allocation, supply chain management and data synchronisation services and ought to be registrable under s41(3) Trade Marks Act 1995 (Cth) (TMA) without requiring any reference to s 41(5) TMA.

    4. In any event, if it is necessary to refer to s 41(5), the Applicant respectfully submits that the evidence provided by the users of its services puts beyond any doubt that the use of the digits “93” at the commencement of a barcode distinguishes the Applicant as the provider of those specific bar code allocation, supply chain management and data synchronisation services.

12. Given the submissions in respect of class 16 I will not comment further upon those goods, except to state that I find the sign does not distinguish them. The remainder of the decision is in respect of only the services specified in the application.

Reasons

1. Before proceeding with my discussion I shall deal with a preliminary matter first. In the application form, and as depicted on the first page of this decision, the description of the trade mark appears within the trade mark image, and the image has been captured as such in the trade marks database. Usually the description of the trade mark would appear separately to the image to which it pertains. It was made clear in Woolworths Limited v BP plc (No 2)[9] that both the description and image of a trade mark comprised its representation. That being the case, had I determined that the application could proceed it would have been open to the Applicant to amend its trade mark image to

and to have its description appear as an endorsement in the trade marks database, without offending the provisions of section 65 of the Act.

[9] [2006] FCAFC 132; (2006) 70 IPR 25.

Section 41

1. Section 41 of the Act relevantly provides:

   (2) An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons.

   Note:  For goods of a person and services of a person see section 6.

   (3) In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.

   (4) Then, if the Registrar is still unable to decide the question, the following provisions apply.

   (5) If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so  distinguishing the designated goods or services:

   (a) the Registrar is to consider whether, because of the combined effect of the following:

   (i) the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;
   (ii) the use, or intended use, of the trade mark by the applicant;
   (iii) any other circumstances;

   the trade mark does or will distinguish the designated goods or services as being those of the applicant; and

   (b) if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant's goods or services from the goods or services of other persons; and
   (c) if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant's goods or services from the goods or services of other persons.

   Note 1:  For goods of a person and services of a person see section 6.

   Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

   (6) If the Registrar finds that the trade mark is not inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:

   (a) if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
   (b) in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.

   Note 1:  Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:

   (a)  the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or

   (b)  the time of production of goods or of the rendering of services.

   Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

2. Lord Parker of Waddington, in Registrar of Trade Marks v W. and G. Du Cros Ltd[10], described the initial consideration of inherent adaptation to distinguish as:

   whether other traders are likely, in the ordinary course of their business and without any improper motive, to desire to use the same mark, or some mark nearly resembling it, upon or in connexion with their own goods.

   [10] [1942] UKHL 3; (1913) AC 624 at 635.

3. Sundberg J, in Chocolaterie Guylian NV v Registrar of Trade Marks[11], described further the steps the Registrar must take in considering a trade mark under section 41:

   [11] [2009] FCA 891 at [9]; (2009) 82 IPR 13.

   (a) The Registrar must first “take into account the extent to which the trade mark is inherently adapted to distinguish” the relevant goods from the goods of others: subs 41(3);

   (b) If that consideration leads to a conclusion that the trade mark is capable of distinguishing the goods from those of others, then, so long as the Registrar is not satisfied that any other grounds for rejecting the [trade mark] exist, she must accept the [trade mark]…

   (c) However, if the Registrar is “unable to decide” whether the trade mark is capable of distinguishing the goods by the “inherently adapted” consideration alone, then either subs 41(5) or subs 41(6) applies: see subs 41(4). Subsection 41(5) will apply if the Registrar finds that the trade mark “is to some extent inherently adapted to distinguish the ... goods ... from the goods ... of other persons but is unable to decide, on that basis alone, that the trade make is capable of so distinguishing the ... goods”. By contrast, subs 41(6) will apply if the Registrar finds that the trade mark “is not to any extent inherently adapted to distinguish”.

   (d) If the Registrar finds the trade mark is to some extent inherently adapted (subs 41(5)), the Registrar is then required to consider whether the trade mark “does or will distinguish the ... goods as being those of the applicant”, by taking into account the combined effect of the following three matters (par 41(5)(a)):

   ·the extent to which the trade mark is inherently adapted to distinguish;

   ·the use, or intended use, of the trade mark by the applicant; and

   ·any other circumstances.

   (e) After taking those matters into account, the trade mark is “taken to be capable of distinguishing the applicant’s goods ... from the goods ... of other persons” only if the Registrar is “satisfied” that the trade mark in fact does or will so distinguish the goods: par 41(5)(b). If the Registrar is not so satisfied, then the trade mark is taken not to be capable of distinguishing (see par 41(5)(c)), a ground for rejecting the [trade mark] will thereby exist and the Registrar is then required to reject the [trade mark]…

   (f) In the alternative scenario that the Registrar finds that the trade mark is not to any extent inherently adapted to distinguish (subs 41(6)), then the trade mark is taken not to be capable of distinguishing the goods unless the applicant “establishes” that, because of the extent to which the applicant has used the trade mark prior to the relevant filing date of the application, the trade mark does in fact distinguish the goods as being those of the applicant: pars 41(6)(a) and (b).

1. Applied here, the question before me is whether the sign applied for is inherently adapted to distinguish the Applicant’s services in terms of subsection 41(3) such that other traders are unlikely to wish to use it without improper motive, or if it is not, whether the sign has or will have acquired distinctiveness through use (or in the case of 41(5) whether there are other circumstances which may support acceptance of the application).

2. I do not consider that the inherent qualities of the Applicant’s sign are such that I am able to decide it is capable of distinguishing, in terms of subsection 41(3). The Applicant submits that the numbers ‘93’ at the commencement of a bar code are not descriptive of the specified services, and that third parties wishing to allocate thirteen digit barcode numbers may select from over 990,000,000,000 other combinations. It further submits that the question arises why such third parties “would wish, without improper motive, to allocate 13 digit barcodes commencing with the digits “93” except for the obvious goal of encouraging the false perception of approval by or association with the Applicant.” (original emphasis)

3. Although a series of numbers cannot be said to be descriptive of any services in general, it is not necessarily so that the sign is inherently distinct. Here, the sign consists of thirteen digits commencing with the digits ‘93’ in combination with vertical lines of varying thicknesses, being EAN-13 symbols, which in total represent a barcode. The barcode is merely a depiction of what it is that the Applicant allocates. Other traders in the business of barcode allocation, supply chain management and data synchronisation use barcodes. It is not difficult to imagine barcodes allocated and used by other traders, without improper motive, beginning with numbers such as ‘_3’ or ‘9_’ many of which may be considered to be similar. This is not mitigated by the proposition that they have over 990,000,000,000 other combinations to choose from – the question is not whether there is an availability of other combinations but whether other traders are likely to use, or desire to use, the relevant combinations in the course of trade without improper motive. Further, the implication that other traders could only wish to use ‘93’ at the beginning of a barcode with improper motive is a result of the Applicant’s use, a consideration not relevant to any distinctive inherent characteristics being assessed under subsection 41(3). Referring again to Chocolaterie Guylian NV v Registrar of Trade Marks[12], the following principles quoted by Sundberg J are relevant here:

   The question whether a trade mark is inherently adapted to distinguish is directed at the nature of the trade mark itself and is not concerned with the mark’s capability to distinguish arising from its actual or intended use: Burger King Corporation v Registrar of Trade Marks (The Whopper case) [1973] HCA 15; (1973) 128 CLR 417 (Burger King) at 424; Kenman Kandy [2002] FCAFC 273; 122 FCR 494 at [83] (Lindgren J). A trade mark that is inherently adapted to distinguish goods is one that can “do the job of distinguishing without first educating the public that it is a trade mark”: British Sugar plc v James Robertson & Sons Ltd [1996] RPC 281 (British Sugar) at 306 (Jacob J); see also Austereo [2004] FCA 968; 61 IPR 257 at [48] (Finn J).

   [12] Ibid, at para 59.

4. Being therefore undecided that the sign is inherently adapted to distinguish the Applicant’s services, subsections 41(5) and/or 41(6) apply. In respect of services the examiner raised grounds under subsection 41(5) and the Applicant’s responses, including evidence, have been framed around those requirements. Although I consider that grounds for rejection under 41(6) may be more appropriate, I will determine this matter under 41(5), noting that if the Applicant cannot satisfy the requirements of 41(5) then it cannot do so for 41(6) either.

5. Without examples in evidence it may be difficult to determine exactly how the sign is being used. One could infer that, as is usual for a barcode, it appears on its own (that is, without ‘GS1’ or similar) as part of the packaging of a product or upon a printed label or sticker - indeed this was shown to be typical at the hearing by way of various grocery items being shown (although not tendered as evidence). Even so, I have considerable doubt over the sign acting as a badge of origin without first educating the public that it is a trade mark.

6. Counsel for the Applicant rightly points out that the market for the Applicant’s services is relatively specialised, not being ordinary members of the public but rather companies which sell large of volumes of goods – both manufacturers and retailers (although I note also that small scale manufacturers with only one or a few products may wish to be allocated such barcodes as well).

7. The evidence indicates that several of those major manufacturers and retailers associate a barcode beginning with ‘93’ with the Applicant, and specifically that such a barcode is one that has been allocated by the Applicant. However this does not, to my mind, indicate that they recognize it as a trade mark. The questionnaire does not allow the respondent to provide its own views as to what, if anything, the numbers ‘93’ at the beginning of a barcode means to himself or herself. Rather it directs the reader to consider organisations that allocate barcodes and then which of them allocates barcodes beginning with the numbers ‘93’. Similarly some of the statements reproduced in paragraph 13 do not necessarily convey recognition as a trade mark but rather recognition that the product is Australian. There is also considerable difficulty gauging the extent of recognition of the sign, except to note that relative to the many subscribers of the Applicant, only very few questionnaires and trade declarations are in evidence.

8. I bear in mind also the ‘Veinnetta’[13], ‘BP Green’[14] and ‘Chocolate Seahorse’[15] decisions, all of which considered evidence showing an association of the sign with the trader, but nevertheless concluded that the association did not amount to recognition or use as a trade mark. Whilst not necessarily ‘on all fours’, I take particular note of certain comments in those decisions such as

   …what has not been proved is that any member of the public would rely upon the appearance alone to identify the goods. They recognize it but do not treat it as a trade mark (in Viennetta at 662),

   It is necessary for BP to establish that the association is referable to the use of the mark as a trade mark…to establish distinctiveness through use the proprietor must have done something in its use to identify the sign as being a trade mark; the use of a sign, without more, does not necessarily create the perception that the products originate from a particular trade source (in BP Green at 117),

   …I am of the view that this association on the whole is likely to be referable to Guylian’s sale of the sea shell and seahorse shaped chocolates, over a long period of time, under the banner of the distinctive “Guylian” and “G” trade marks, rather than to the shape itself being used as a trade mark. The cases confirm that association evidence on its own does not prove distinctiveness; the evidence must establish that the public has been educated to understand the sign as an identifier of the origin of the goods (in Chocolate Seahorse at 100).

   [13] Unilever plc’s Trade Mark Applications [2003] RPC 35.

   [14] Woolworths Limited v BP plc (No 2) [2006] FCAFC 132; (2006) 70 IPR 25.

   [15] Chocolaterie Guylian N.V. v Registrar of Trade Marks, supra.

9. Whilst there is evidence before me of some association between a barcode beginning with the numbers ‘93’ and the services provided by the Applicant, I do not consider the Applicant has established that it has educated its relevant market that its sign is a trade mark, nor has it established that its relevant market recognises it as such to the extent that the provisions of subsection 41(5) can be applied. As stated previously, given the provisions of subsection 41(5) cannot be satisfied, the provisions of subsection 41(6) would not be satisfied either.

Decision

1. Section 33 of the Act provides:

Application accepted or rejected

33.(1) The Registrar must, after the examination, accept the application unless he or she is satisfied that:

(a) the application has not been made in accordance with this Act; or
(b) there are grounds for rejecting it.

Note:  For the grounds on which an application may be rejected see Division 2.

(2) The Registrar may accept the application subject to conditions or limitations.

Note:  For limitations see section 6.

(3) If the Registrar is satisfied that:

(a) the application has not been made in accordance with this Act; or
(b) there are grounds for rejecting it;

the Registrar must reject the application.

(4) The Registrar may not reject an application without giving the applicant an opportunity of being heard.

Note:  For applicant see section 6.

1. I reject trade mark application no. 1369337.

Nicole Worth

Hearing Officer

Trade Marks Hearings

17 December 2012