Hasbro, Inc v Mogens Rud Svendsen

TRADE MARKS ACT 1995

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

Re:Opposition by Hasbro, Inc to extension of protection of international registration designating Australia 1338381 – - (International Registration 1022208) in Classes 9 & 25 filed by Mogens Rud Svendsen

Delegate:

Michael Kirov

Representation:

Opponent: Gabriella Rubagotti of Counsel, instructed by Erin Cassidy of Baker & McKenzie, Attorneys & Solicitors.

Holder: No appearance or submissions.

Decision:

2014 ATMO 29

Regulation 17A.34 opposition: s 44 considered – trade mark deceptively similar to CLUEDO trade mark registered for similar goods – extension of protection to Australia refused. Costs awarded against the Holder.

Background

Trade mark application number 1338381 is the Australian designation of an application under the Madrid Protocol by Mogens Rud Svendsen (“the Holder”) to extend protection of the trade mark subject of international registration 1022208 (“the IR”) to Australia (“the IRDA”). After examining the IRDA, IP Australia advertised on 4 March 2010 its intention to extend protection for goods in Classes 9, 25 and 28. Hasbro, Inc (“the Opponent”) subsequently opposed this pursuant to reg 17A.34 of the Trade Marks Regulations 1995 (“the Regulations”).
The Opponent concurrently brought cancellation proceedings against the Danish registration upon which the IR is based. This eventually resulted in the Class 28 goods covered by the IR, and consequently the Class 28 specification of the IRDA, being deleted prior to the Australian opposition being heard. Details of the IRDA relevant to the present opposition are accordingly as follows:

Application No: 1338381

Priority Date: 29 October 2009

Goods:Class 9: Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus
Class 25:Clothing, footwear, headgear

Trade Mark:

(“the Opposed Mark”)

I heard the matter as a delegate of the Registrar of Trade Marks on 14 February 2014 in Sydney. The Holder did not appear and was not represented at the hearing, nor did it file any written submissions. Gabriella Rubagotti of Counsel, instructed by Erin Cassidy of Baker & McKenzie, Attorneys & Solicitors, appeared for the Opponent. Ms Rubagotti’s oral submissions were supplemented by written submissions emailed to me on 4 February 2014.

Grounds of Opposition and Onus

The Notice of Opposition (“the Notice”) lists some fourteen grounds corresponding to various provisions of the Act. Ms Rubagotti nevertheless confirmed that the Opponent would only be pressing those grounds based on sections 42(b), 43, 44, 60 and 62A of the Act. To succeed in its opposition the Opponent bears the onus of establishing at least one of these five grounds. As will become apparent, I have only found it necessary to address the Opponent’s s 44 ground in this decision and this is discussed below. Of course should the decision be appealed, it would always remain open to the Opponent to plead any ground it considered relevant in proceedings before the Court.

The Relevant Date

As indicated by Kitto J in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd[1] (“Southern Cross”) the relevant date at which the rights of the parties are to be determined is the 29 October 2009 priority date of the IRDA.
[1] (1954) 91 CLR 592 at 595.

Standard of Proof

I confirm I am proceeding on the basis that the relevant standard of proof required of the Opponent is the ordinary civil standard based on the balance of probabilities.[2]
[2] Following Gyles J in Pfizer Products Inc v Karam (2006) 70 IPR 599 at [6] to [26].

The Evidence

Only the Opponent filed evidence in the proceedings, being a declaration made under the Act by Monica Dawson on 24 September 2012, with Annexures MD-1 to MD-30 (“the Declaration”). Ms Dawson is “Pacific Marketing Manager” of Hasbro Australia Limited, the Opponent’s Australian licensee and authorised user in this country of numerous trade marks owned by the Opponent, including the mark CLUEDO.

Discussion

Section 44

The ground based on s 44 of the Act is indicated in the Notice as follows:
[T]he [Opposed Mark] is substantially identical with or deceptively similar to one or more trade mark registrations and/or applications having an earlier priority date in respect of similar goods/services or closely related goods/services, in particular, Australian trade mark registrations 247609, 439476 and 917088.
Only s 44(1) of the Act is relevant in this case and this is set out below:

Identical etc. trade marks

(1) Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant's trade mark) in respect of goods (applicant's goods) must be rejected if:
(a) the applicant's trade mark is substantially identical with, or deceptively similar to:
(i) a trade mark registered by another person in respect of similar goods or closely related services; or
(ii) a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and
(b) the priority date for the registration of the applicant's trade mark in respect of the applicant's goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

Note 1: For deceptively similar see section 10.
Note 2: For similar goods see subsection 14(1).
Note 3: For priority date see section 12.

The three registrations nominated in the Notice as underpinning the Opponent’s s 44 ground are all owned by the Opponent and are all for the trade mark CLUEDO. Further relevant details of the registrations are included in the Declaration and are set out in the table below:

Regn No.	Priority Date	Goods
247609	14.04.71	Class 28: Games and playthings including board games
439476	21.01.86	Class 9: All goods in this class including video cassette games, video games & computer programmes for playing games
917088	21.06.02	Class 16: Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers' type; printing blocks; including note pads Class 25: Clothing, footwear, headgear

Each of the three registrations has a priority date earlier than that of the Opposed Mark. Accordingly for the Opponent’s s 44 ground to be established, I would need to be satisfied on the balance of probabilities that:

the opposed application covers “similar goods”[3] to the goods covered by one or more of the Opponent’s registrations; and
the Opposed Mark is “substantially identical” with, or “deceptively similar” to, the CLUEDO trade mark.
[3] As defined in s 14(1) of the Act, namely the same goods or goods “of the same description”.

Since registration 439476 covers “all goods” in Class 9 it undoubtedly covers all of the goods listed in the Class 9 specification of the opposed application. Moreover, the Class 25 specification of the Opponent’s registration 917088, “Clothing, footwear, headgear”, is identical to that of the opposed application. The essential issue for determination is accordingly whether the Opposed Mark is substantially identical with, or deceptively similar to, the CLUEDO mark. That said, in this case the Opponent does not claim that the Opposed Mark is “substantially identical” with the CLUEDO trade mark, but does submit it is “deceptively similar” and so this is the issue to which I now turn.
As regards the issue of deceptive similarity generally, it is relevant here to note that French J (as he then was) expressed the view in Registrar of Trade Marks v Woolworths Ltd[4] (“Woolworths”) that the determination of whether, and to what degree, an applicant’s goods or services are similar to, or closely related to, the relevant goods or services of the earlier trade mark owner is “logically antecedent to” assessing the similarity of the parties’ trade marks. In particular French J explicitly approved the observation in Wilcox J’s first instance decision in the Woolworths matter[5] that, “The closer the relationship between the services and particular goods, [6] the more likely any similarity in marks will prove deceptive”.
[4] (1999) 45 IPR 411. His Honour’s comments were made in the context of closely related goods and services, but are relevant also in the context of “similar goods” as defined in s 14(1) of the Act.
[5] Woolworths Limited v Registrar of Trade Marks (1998) 42 IPR 615 (at 624).
[6] See footnote 4.
In the present matter I confirm I will consider the issue of whether the Opposed Mark is deceptively similar to the CLUEDO mark bearing in mind this observation from Woolworths and on the basis that both trade marks might in principle be used for the identical goods in Classes 9 and 25.
As Ms Rubagotti noted in her submissions, s 10 of the Act defines the term “deceptively similar” as follows:
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
The distinction between the terms “to deceive” and “to cause confusion” was addressed by the Full Federal Court in The Coca-Cola Company v All-Fect Distributors Ltd,[7] where in a joint judgment Black CJ, Sundberg and Finkelstein JJ said the following at [39]:
Section 10 of the Act provides that a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. No intention to deceive or cause confusion is required: Re Bali Brassiere Co Inc's Registered Trade Mark (1968) 118 CLR 128 at 139. The distinction between “likely to deceive” and “likely to cause confusion” lies not in some element of culpability in the user to be inferred from the word “deceive”, but in the effect of the mark on prospective purchasers. In Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd [1979] RPC 410 at 423 Richardson J, in the New Zealand Court of Appeal, said:
“Deceived” implies the creation of an incorrect belief or mental impression and causing “confusion” may go no further than perplexing or mixing up the minds of the purchasing public … Where the deception or confusion alleged is as to the source of the goods, deceived is equivalent to being misled into thinking that the goods bearing the applicant's mark come from some other source and confused to being caused to wonder whether that might not be the case.
[7] (1999) 96 FCR 107; 47 IPR 481.
Moreover, as far as “confusion” in particular is concerned, Dodds-Streeton J highlighted in Tivo Inc v Vivo International Corporation Pty Ltd[8] (“Tivo 1”) at [105] that:
It is well established that trade marks may be deceptively similar for the purposes of ss 44(1) and (2) of the Act even if confusion is unlikely to persist up to the point of, and contribute to, inducing sale.
[8] [2012] FCA 252 (19 March 2012).
I note that Dodds-Streeton J’s ultimate finding in that case, (that was deceptively similar to TIVO in the context of audio-visual products), was upheld on appeal to the Full Federal Court[9] in Vivo International Corporation Pty Ltd v Tivo Inc[10] (“Tivo 2”). I will have more to say about this case below.
[9] Keane CJ (as he then was), Nicholas and Dowsett JJ.
[10] (2012) 99 IPR 1.
In Woolworths[11] French J conveniently restated the major considerations involved in assessing deceptive similarity under the Act based on principles formulated by Kitto J in Southern Cross:
In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 594-5, which concerned the 1905 Act, Kitto J set out a number of propositions which have frequently been quoted and applied to the 1955 Act. The essential elements of those propositions continue to apply to the issue of deceptive similarity under the 1995 Act. Applied also to service marks and absent the imposition of an onus upon the applicant they may be restated as follows:
(i) To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient.
(ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt. It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.
(iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.
(iv) The rights of the parties are to be determined as at the date of the application.
(v) The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained.
In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v The Bali Company Inc (1973) 129 CLR 353 at 362:
“...the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion.”
[11] Op. cit. at [50].
As Ms Rubagotti further pointed out, guidance in assessing deceptive similarity is also generally found in Australian Woollen Mills Ltd v FS Walton & Co Ltd[12] where, as Dixon and McTiernan JJ put it in their joint judgment in a familiar passage at 658 quoted in her submissions:
In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, their similarities both of sound and of meaning may play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected.
[12] (1937) 58 CLR 641.
I note their Honours’ specific references in the above quote to the fact that, “The effect of spoken description must be considered” and that “similarities both of sound and of meaning may play an important part” in assessing whether marks are deceptively similar. It is perhaps germane also to note in this regard that s 7(2) of the Act explicitly states:
To avoid any doubt, it is stated that, if a trade mark consists of the following, or any combination of the following, namely, any letter, word, name or numeral, any aural representation of the trade mark is, for the purposes of this Act, a use of the trade mark.
There is no doubt, as several leading cases show, that aural similarity may in itself be sufficient as a basis for finding two trade marks deceptively similar. This is particularly so given, as emphasized by the Full Federal Court (Moore, Sackville and Emmett JJ) in Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd[13] (“Crazy Ron’s”) at [77]:
…the court must make allowance for the imperfect recollection a person may have of the registered trade mark in determining whether another mark so nearly resembles the registered mark that it is likely to deceive or cause confusion. For example, in Aristoc Ltd v Rysta Ltd [1945] AC 68 ; (1944) 1B IPR 467 ; [1945] 1 All ER 34, the House of Lords held that the respondents were not entitled to register RYSTA as a trade mark in respect of stockings in the face of the appellants’ ARISTOCRAT registered mark for the same goods. Viscount Maugham (with whom Lords Thankerton and Wright agreed) adopted (at AC 86; All ER 38–9) the reasoning in the dissenting judgment of Luxmoore LJ in the Court of Appeal: Re Rysta Ltd’s Application[1943] 1 All ER 400 ; (1943) 60 RPC 87. Luxmoore LJ said (at All ER 407; RPC 108–9):
The answer to the question whether the sound of one word resembles too nearly the sound of another so as bring the former within the limits of the Trade Marks Act 1938, s 12, must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word, and has perhaps an imperfect recollection of it who is likely to be deceived or confused. Little assistance, therefore, is to be obtained from a meticulous comparison of the two words letter by letter and syllable by syllable pronounced with the clarity to be expected from a teacher of elocution. The court must be careful to make allowance for imperfect recollection and the effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistance ministering to that person’s wants.
[13] (2004) 61 IPR 212.
Following the Full Court’s decision in Crazy Ron’s, Perram J in Solahart Industries Pty Ltd v Solar Shop Pty Ltd,[14] an infringement case, determined that the trade marks SOLAHART and SOLARHUT were deceptively similar in terms of s 120 of the Act (in connection with water heating apparatus and similar goods in Class 11) based in particular on their aural similarity and notwithstanding the marks were clearly spelt differently. As he explained at [38] to [40] of his judgment:
[38] The question of whether the two marks are deceptively similar raises altogether different considerations. Section 10 defines a trade mark as deceptively similar to another trade mark “if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion”. The principles are not in doubt and are conveniently collected in the Full Court’s decision in Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd(2004) 209 ALR 1 ; 61 IPR 212 ; (2004) AIPC 92-015 ; [2004] FCAFC 196 at [72]–[81] (Crazy Ron’s): the question of deceptive similarity is not to be judged by a side by side comparison; instead, what is involved is a comparison, on the one hand, of the impression based on recollection of the applicant’s mark that persons of ordinary intelligence would have and, on the other, the impression such persons would get from the respondent’s mark; in that assessment aural similarity may be important. The risk of deception must be tangible but it is enough if an ordinary person entertains a reasonable doubt. So, too, in assessing the recollection of a mark allowance must be made for the frailty of human memory and this means that, when it comes to considering whether one mark so nearly resembles another that it is likely to cause confusion or deception, account must be taken of the imperfect nature of recollections. That principle extends even to marks which are not just invented words. Thus if a mark includes words which can be regarded as an essential feature another mark incorporating those same words may infringe the registered mark.
[39] As the discussion above in the context of substantial identicality under s 120(2)(a) shows, there are, no doubt, visual similarities between the words solahart and solarhut. Both plainly invoke, or suggest, the word “solar” and thereby a connexion with the sun. But this is hardly surprising in an industry literally focused on the sun. It is true that in solahart the “R” has been dropped from the word solar but I do not think that is especially material. There will be many reasonable people who do not know, or who will not remember, that solahart is missing the “R”.
[40] On the other hand, hart and hut are plainly different from a visual perspective. A person of ordinary intelligence’s recollection of the solahart mark would, in my opinion, at least remember that the mark was not about “huts” but something else. It may be for some that a connotation relating to “heart” is lodged in their memory or for others, a kind of deer or for others yet an invented name with no meaning. None of them, however, is likely to recall that the mark is associated with “huts” or other modest residential structures. A comparison, however, of the two marks by reference to how they sound and the recollection of a person of the two marks when spoken is, in this case, important. The difference between the two is nearly imperceptible. This is not only because the missing “R” has little or no phonetic effect on the preceding “A” but because the words hart and hut sound almost the same. This is a case where the aural impression makes a decisive difference: the solarhut mark is deceptively similar to solahart within the meaning of s 120(2)(a).
[14] (2011) 92 IPR 165.

In the present matter there is no evidence from the Holder suggesting how the Opposed Mark may be pronounced, but in my estimation it is difficult to avoid the conclusion that most people in Australia would pronounce it in exactly the same manner they would pronounce the Opponent’s CLUEDO trade mark. In other words the parties’ marks are in my view phonetically identical. As indicated, it has long been held that in order to assess deceptive similarity trade marks should not be compared side by side and thus the slight stylization and different spelling of the Opposed Mark must to a large extent be discounted. Rather, I should attempt to assess the effect or impression produced on the mind of potential purchasers of the Holder’s goods, who know of the CLUEDO mark (and perhaps have an imperfect recollection of it), when they encounter such goods being offered under the Opposed Mark. This may of course arise, inter alia, in the course of radio advertising or telephone enquiries. As indicated in the above quote from Woolworths, it is enough if the person of ordinary intelligence and memory would be caused to wonder, or be left in doubt, about whether the goods in question come from the same source.
Nor, in light of the phonetic identity of the parties’ marks, is the risk in this case necessarily limited to deception or confusion of this kind. As the decision of the Full Federal Court in Tivo 2 affirms, two marks may be considered deceptively similar not only because consumers might think them related in the sense that the goods sold under them come from the same source, but due also to their simply being mistaken one for the other because of their close phonetic similarity. As mentioned earlier, in Tivo 2 the Court (unanimously) upheld Dodds-Streeton J’s finding at first instance that the trade mark was deceptively similar to the trade mark TIVO in the context of audio-visual products. At [159] of his judgment Nicholas J (with whom Dowsett J agreed) noted:
My decision on the s 44(1) point turns not on any risk that the two marks might be confused as being related, but on the basis that they exhibit a strong phonetic similarity, and that consumers of ordinary memory and intelligence who had an imperfect recollection of one or other of the marks might not appreciate that the brand name referred to in the course of discussions taking place prior to sale was different to that which the consumer had previously seen or heard.[15]
[15] See also Nicholas J’s judgment at [107]-[108] and [152]-[160] generally.
His Honour had earlier made it clear that it was the “strong phonetic similarity” of the TIVO and marks alone that led him to conclude they were deceptively similar and that he accordingly did not consider the stylization of the mark was significant. As he explained at [152]-[154]:
[152] The question whether the application for registration of the Vivo trade mark should have been rejected in accordance with the requirements of s 44(1) of the Act raises a number of considerations.
[153] As previously explained, the question must be addressed on the footing that the primary judge’s finding of deceptive similarity was based upon phonetic similarity and that her Honour’s rejection of TiVo’s case based upon visual similarity was not challenged on appeal. This creates an element of complexity in what some might otherwise regard as a relatively straightforward case. The way in which the appeal has been conducted has prevented me from concluding that the Vivo trade mark is deceptively similar to the TiVo trade mark based upon a visual comparison of the marks.
[154] The Vivo trade mark is a composite word and device mark. The word “Vivo” is the dominant element of the mark. I doubt that the device that forms part of the mark would make any lasting impression on the mind of most consumers. Consumers who wish to refer to Vivo products in written or oral communications will almost certainly do so using only the word component of the mark.
Keane CJ also concluded that was deceptively similar to TIVO based on the marks’ aural similarity, noting that this was notwithstanding the marks began with different letters:
[74] It is readily apparent from the reasons of the primary judge that the absence of visual similarity between the two trade marks did not escape her Honour’s attention. Notably, the primary judge did:
[171] … not think the marks deceptively similar on a visual comparison, as they include a visually different initial letter and, as Vivo is a device mark, are differently represented. Nevertheless, [according to the primary judge] in the context and circumstances of sale, the difference in appearance would not preclude the likelihood of confusion, as … in a substantial proportion of cases, the aural effect and impression of the mark are likely to be of greater significance that the visual effect and impression.
…
[80] Her Honour concluded that the significant phonetic similarity was likely to cause confusion. I am satisfied that this similarity is sufficient to give rise to a “real danger of confusion” on the part of customers: see Berlei Hestia at CLR 362; ALR 450.
[81] The phonetic similarity of the two marks, notwithstanding the different consonants with which each mark begins, is significant. Thus, in Wingate Marketing Pty Ltd v Levi Strauss (1994) 49 FCR 89; 121 ALR 191; 28 IPR 193 the Full Court of the Federal Court upheld the trial judge’s view that the trade mark “Revise” resembled “Levi’s” sufficiently to cause confusion by reason of the tendency of many persons to pronounce “Revise” to rhyme with “Levi’s”.
I have reached a similar conclusion in the present matter. Here the Opposed Mark is on the face of it phonetically identical to the CLUEDO mark and I do not think that the stylization of the Opposed Mark or the different initial letters of the parties’ marks are sufficient to significantly reduce the risk of confusion amongst potential consumers. In this regard I note the words of Lord Radcliffe in De Cordova v Vick Chemical Co:[16]
…that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole.
[16] (1951) 68 RPC 103; 1b IPR 496 at RPC 106; IPR 499.
In summary, my finding is that the Opposed Mark is deceptively similar to the Opponent’s CLUEDO mark. I have already noted that the IRDA covers goods which are the same as those covered by the Opponent’s registrations 439476 and 917088. The Opponent has accordingly established its s 44 ground of opposition.

Decision

Reg 17A.34N of the Regulations provides:
(1) Unless the opposition proceedings are discontinued or dismissed, the     Registrar must decide:
(a) to refuse protection in respect of all of the goods or services listed in the                  IRDA; or
(b) to to extend protection in respect of some or all of the goods or services                   listed in the IRDA (with or without conditions or limitations);
having regard to the extent (if any) to which the grounds on which the
IRDA was opposed have been established.
(2) The Registrar must notify the International Bureau of the Registrar's decision.
I have found the opposition to be successful on the ground raised pursuant to s 44 of the Act. I accordingly refuse to extend protection of the IRDA to Australia in respect of all of the goods it covers. In accordance with reg 17A.34N(2), the International Bureau will be notified of this decision as soon as practicable.

Costs

In the event that it prevailed, Ms Rubagotti requested an award of costs in the Opponent’s favour. As the successful party, the Opponent is entitled to its costs and I accordingly award costs against the Holder as per Schedule 8 of the Regulations

Michael Kirov

Hearing Officer

Trade Marks Hearings

4 April 2014

[2014] ATMO 29

4 April 2014

Key Legal Topics

Areas of Law

Intellectual Property

Civil Procedure

Legal Concepts

Injunction

Damages

Remedies

Jurisdiction

Costs