Himalaya Global Holdings Ltd

[2012] ATMO 19

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1362598(30) - SOLIGA FOREST HONEY - in the name of Himalaya Global Holdings Ltd.

Delegate:

Iain Thompson

Representation:

Applicant: Cathryn Warburton of Acacia Law

Decision:

2012 ATMO 19

s33 proceedings - s41 - trade mark lacks any inherent adaptation to distinguish - application rejected

Background

1. These are proceedings under section 33 of the Trade Marks Act 1995 (‘the Act’) concerning the trade mark application detailed below:

Application No: 1362598

Priority Date:  20 May 2010

Goods:  Class 30: Honey

Trade Mark:  SOLIGA FOREST HONEY

1. An examiner of trade marks has issued three reports which recite grounds for rejection of the trade mark which he states exist under subsection 41(5) of the Act because, “Your trade mark consists of the words SOLIGA FOREST HONEY. The word SOLIGA refers to a tribe in India [that has] a reputation for harvesting honey. This indicates that your claimed goods are honey is [sic] SOLIGA FOREST HONEY (ie. FOREST HONEY harvested by the SOLIGA). Other traders should be able to use the words SOLIGA FOREST HONEY in connection with goods or services similar to yours.”

2. In his third report the examiner of trade marks intimated that it was likely that the rejection process would begin on receipt of any further submissions from the applicant.  Subsequently, the applicant requested to be heard.

3. As a delegate of the Registrar of Trade Marks I heard the submissions of the applicant by teleconference in Canberra on 14 December 2011.  Ms Cathryn Warburton of Acacia Law represented the applicant.

Submissions

1. Ms Warburton provided a written summary of her submissions which I reproduce below.

   Is the mark non-distinctive/likely to be needed by other traders in a way contrary to section 41 of the Trade Marks Act? According to Eclipse Sleep Products Inc v Registrar of Trade Marks (1957) 99 CLR 300 at 310, a mark will fall foul of section 41 if:

   “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 connection with their own goods”.

   The idea of section 41 is to protect the common right of the public to make honest use of words which form part of the “common heritage”: see Clark Equipment Co v Registrar of Trade Marks (1964 111 CLR 511 at 514.

   A mark will be treated as non-distinctive if the words which make it up are so common, and their meaning so plain, that it is inconceivable that they could or should be associated with one trader: Crosfield & Sons Ltd’s Application (1909) 26 RPC 837; also Eclipse Sleep Products (supra).

   In Mark Foy’s Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190 at 195, the court held that a mark will still be registrable if its words “...have an emotive tendency, but do not appear to ... convey any meaning or idea sufficiently tangible to amount to a direct reference to the character or quality of the goods.”

   SUBSTANTIVE SUBMISSIONS

   The Applicant submits that its SOLIGA FOREST HONEY mark is distinctive and is not likely to be needed by other traders.

   It is highly doubtful that, in the ordinary course of business, a trader may desire to use this phrase in connection with their own goods.

   This is because the phrase, taken as a whole, does not clearly denote anything. “Soliga” refers to an Indian tribe. It is therefore highly unclear what the mark actually means. Does it refer to honey which is made in a forest by the Soliga people? Or does it refer to honey which is made in a forest known as the “Soliga Forest”?

   A consumer would know that the product is honey and a forest is also involved somehow, but the structure of the phrase means that they would have no concrete idea of what “Soliga Forest Honey” actually is.

   In addition, the Soliga tribe is a very remote and obscure tribe, the existence of which will be known to very few Australians. Even if the name were generally known, it is not a name which is associated in any way with honey. The use of the name Soliga, in combination with “forest” to refer to honey, is completely fanciful.

   Furthermore, honey is not generally associated with forests. The word “forest” in the trade mark will most likely be taken by a purchaser to provide a fanciful reference to the fact that the product is a natural product. Clearly the name does not certify that the honey is produced in a forest. As stated in the Mark Foys case, the use of word forest to emotively refer to a natural basis of a product is quite permissible in a trade mark.

   The mark is therefore registrable in terms of Mark Foys case (supra).

   This is because the words do not convey any “idea sufficiently tangible to amount to a direct reference ... to the goods” which that case stated was required for a mark to be non-distinctive.

   Furthermore, because it is unclear what the phrase “Soliga Forest Honey” actually means, it is unlikely that other traders will want to use it in the course of their business. The significant ambiguities means the phrase is essentially useless as a descriptor, so it is doubtful that traders may want to use it in connection with their own goods. The phrase as a whole is not likely to be needed to used by others in the trade. This is in contrast with a phrase such as “wild bee honey” or something similar.

   The Applicant further notes that “Soliga” is not an English word and very few people are aware of what it refers to. “Soliga” is not part of the “common heritage” that is the English language; neither, therefore, is the entire phrase “Soliga Forest Honey”.

   Because this phrase is not part of the “common heritage”, to deny it registration under section 41 is to ignore the purpose of s41, which according to Clark Equipment v Registrar (supra) is to ensure that traders are able to use the “common heritage” that is our language.

   The Applicant further submits that since “Soliga” is a non-English word, the words which make up the mark cannot be said to be common or of plain meaning (as required for non-distinctiveness Crosfield & Sons Appn) . Very few consumers would have any idea what “Soliga” refers to and, as noted above, the construction of the phrase means that no clear meaning is apparent.

   Accordingly, in terms of Crosfield & Sons Appn (supra), the mark ought not to be denied registration.

   This same “Soliga Forest Honey” mark was accepted for registration in New Zealand (Registration #824405) with no objections raised. The Applicant’s submission that IPAU has erred in deeming this mark non-distinctive therefore carries some weight, as the distinctiveness tests applied in New Zealand are identical to those in Australia.

   There is one final reason why other traders are unlikely to want to use the mark: the phrase “Soliga Forest Honey” is exceedingly specific. It not only specifies one particular Indian tribe out of the dozens which exist, but also specifically refers to a forest. It is difficult to imagine a circumstance in which another trader would need to use such an exceptionally specific phrase to describe their own goods.

   Accordingly, the Applicant submits that its trade mark is, in fact, distinctive.

The Law

1. Section 41 of the Act provides:

41Trade mark not distinguishing applicant’s goods or services

(1)For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant.

Note 1:For applicant and predecessor in title see section 6.

Note 2:If a predecessor in title had authorised another person to use the trade mark, any authorised use of the trade mark by the other person is taken to be a use of the trade mark by the predecessor in title (see subsection 7(3) and section 8).

(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 to any extent 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).

1. The scheme and operation of section 41 were discussed by Branson J in Blount Inc v Registrar of Trade Marks [1998] FCA 440; (1998) 83 FCR 50; (1998) 40 IPR 498, (‘Blount’) where she said:

   Subsections (3) to (6) of s 41 of the Act are designed to control the process by which the Registrar is to reach a conclusion as to whether the trade mark for which registration is sought is capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered (“the designated goods or services”). If the trade mark is not so capable, the application for its registration must be rejected (s 41(2)). Subsection (3) requires the Registrar first to “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”. Having taken such matter into account, it is theoretically open to the Registrar to conclude:

   (a) that the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons and capable, on that basis alone, of so distinguishing the designated goods or services; or

   (b) that the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons; or

   (c) 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 there is uncertainty, on that basis alone, that the trade mark is actually capable of so distinguishing the designated goods or services.

   The structure of s 41 of the Act dictates that if the Registrar reaches conclusion (a) above, then he or she will decide the question whether or not the trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons by reaching the answer that it is so capable by reason of its inherent adaptability to distinguish (s 41(2) and (3)). The Registrar will, in such circumstances, be required, by reason of the terms of s 33(1) of the Act, to accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application.

   If the Registrar reaches conclusion (b) or (c) above, he or she is, within the meaning of s 41(4) “unable to decide the question”. That is, he or she is unable, simply by taking into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services, to answer the question whether or not the trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons.

   If the Registrar reaches conclusion (b) above, then the provisions of paragraphs (a) and (b) of s 41(6) are brought into operation. If the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date of the application, the trade mark does distinguish the designated goods or services as being those of the applicant, the Registrar will not reject the application pursuant to s 41(2). The Registrar will, in such circumstances, accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application (s 33(1)). If the applicant fails to establish that because of the extent to which the applicant has used the trade mark before the filing date of the application, the trade mark does distinguish the designated goods or services as being those of the applicant, the Registrar must reject the application pursuant to s 41(2).

   If the Registrar reaches conclusion (c) above, then the provisions of paragraphs (a), (b) and (c) of s 41(5) are brought into operation. If the Registrar, having considered the combined effect of the matters listed in subparagraphs (i), (ii) and (iii) of s 41(5)(a), is satisfied that the trade mark does or will distinguish the designated goods or services as being those of the applicant, he or she will not reject the application pursuant to s 41(2). The Registrar will, in such circumstances, accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application (s 33(1)). If the Registrar, having considered the combined effect of the matter listed in subparagraphs (i), (ii) and (iii) of s 41(5), is not satisfied that the trade mark does or will distinguish the designated goods as being those of the applicant, the Registrar must reject the application (s 41(2)).

2. I cannot find any reference within the cases to which Ms Warburton has referred me which support her proposition that a trade mark “will be treated as non-distinctive if the words which make it up are so common, and their meaning so plain, that it is inconceivable that they could or should be associated with one trader.”[Stress added] Indeed, the cases she refers to support no proposition of the kind and the putative principle would treat subsection 41(5) of the Act as having no work to do whatsoever.

3. In Blount Branson J referred to the assessment of a trade mark’s inherent adaptation to distinguish under subsection 41(3) as being governed by the principles formulated by Kitto J in Clark Equipment Co v Registrar of Trade Marks (1964) 111 CLR 511, (‘Clark’) at p 514, where his Honour described the test as follows:

   …the question whether a mark is adapted to distinguish [is to] be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives – in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess – will think of the word and want to use it in connection with similar goods in any manner which would infringe a registered trade mark granted in respect of it.

Research

1. The trade mark examiner forwarded, inter alia, the following research results to the applicant with his first report:

   (i)    A Soliga is a member of a tribe in India that inhabits the Biligirirangan and associated hill ranges in Southern Karnataka, mostly in Chamarajanagar District, bordering the Erode district of Tamil Nadu (a neighbouring state). Most of them are concentrated in and around the BR Hills in Yelandur and Kollegal Taluks of Chamarajanagar. Their population numbers close to 20,000, although the population in and around Biligrirangan Hills is only 2,000. They speak Soliganudi, an ancient Kannada. They used to practice shifting cultivation, but have more or less given up this practice now. They grow Ragi (=Finger millet, Eleusine coracana) for subsistence, although their main source of income is harvesting and sale of Non-timber Forest Produce (NTFP) like honey, nellikai (gooseberry, Emblica officinalis), bamboo, Paasi (Lichen). They are increasingly being brought to the 'main-stream' with an active Government and NGO initiative. Many have been given lands closer to 'civilization' and most of the forest-dwelling population have been brought together into clusters called Podus. Most of the forests they stay in come under protection. The Biligirirangan Hills are a Wildlife Sanctuary under Wildlife Protection Act, 1973, the Malai Mahadeswara Hills is a Reserve Forest, and Bandipur is a National Park. There is a lot of man-animal conflict with their increasing population and needs. Recently, their rights on harvesting NTFP is being sought to be withdrawn citing conservation concerns, sparking a debate about the rights of indigenous people. [Stress added]

   ( Himalaya Soliga Forest Honey is 100% Natural Organic Pure Raw Honey Himalaya Soliga Forest Honey is 100% organic forest honey made from the nectar of hundreds of forest flowers. It is packed with Bioflavonoids and anti ... ( [Stress added]

   (iii)          Soliga Forest Honey

   Himalaya partners with the Soliga Tribe to collect certified organic honey from the tropical evergreen forests of South India. Himalaya buys forest honey from the Soligas, so they may build better lives for themselves. The Soligas believe human life is intertwined with the natural ecosystem, leading to the practice of sustainable harvesting where the wild bee colony and comb are not destroyed. Hundreds of different flora gives this honey a unique flavor and robust aroma. Soliga Forest Honey contains 3 times more bioflavonoids and 7 times more antioxidants than wildflower honey! Soliga Forest Honey is 100% organic and not pasteurized. It is filtered using gravity to remove any impurities. [Stress added]

   ( This website further explains: Himalaya Soliga Forest Honey is 100% organic forest honey made from the nectar of hundreds of forest flowers found in the tropical evergreen forests of South India. In fact, the BR Hills forest area from which this honey is sourced supports amazingly diverse vegetation. There are over 800 different plant species in this forest and the bees collect honey from about 600 flowering plants!! Unlike most regular honey, which is sourced from city-bred bees that collect nectar from common or garden plants, Himalaya Soliga Forest Honey is multi-floral forest honey collected from several rare plant species including many medicinal plants.

1. Further Internet research reveals that traders other than the applicant appear to source honey from the Soligas:

   (iv)Honey

   Jackie loves honey. She thinks it is just the coolest stuff therefore she buys all kinds of unique honey from all over the world such as fireweed honey from over 9000' peaks in Colorado, Soliga honey from the rainforest of India, and Zambezi honey from Zambia, Africa, which supports indigenous people. Try some today! [Stress added]

   (>

   Further Internet research also finds use of the expression ‘forest honey’ by traders other than the applicant:

   (v)   Pureharvest Organic Native Forest Honey contains nothing but the full natural flavour of organic honey. Our native forest honey is a delicious honey, without the highly refined sweetness of sugar. [Stress added]

   ( WONDERFUL STORY OF AUSTRALIAN HONEY

   Choice forest honey from the south. Karri: An amber honey from the forests of Western. Australia. Leatherwood: A unique honey from the west coast of Tasmania … [Stress added] ( the source of the Mighty Zambezi River comes the most delicious forest honey you have ever tasted!!! [Stress added]

   ( type="1">

2. I agree with Ms Warburton that it might be possible to read the trade mark in a number of different ways.  However, the trade mark is to be read and understood in the context of the trade in the goods in question and with the question in mind of how other traders will want to describe their similar forest honey from the same source.  It is axiomatic that trade marks are not to be artificially dissected: Mark Foy's Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190. Accordingly, an elaborate semantic exercise is not appropriate and once it is appreciated that the goods are forest honey most of the arcane submissions in this regard fall away.

3. I am unable to agree with Ms Warburton that “Even if the name [Soliga] were generally known, it is not a name which is associated in any way with honey.”  The reference supplied by the trade mark examiner to the applicant indicates that honey is a product of the Soliga people and demonstrates that this submission is without basis.  Ms Warburton also suggests that the Soliga is only one out of dozens of Indian tribes but offers no support for her assertion or why this should be relevant.  The Soliga are a unique indigenous tribe within Southern India.[2]

   [2] The Soliga, an isolated tribe from Southern India: genetic diversity and phylogenetic affinities

   Diana M Morlote, Tenzin Gayden, Prathima Arvind, Arvind Babu and Rene J Herrera

   Abstract: India's role in the dispersal of modern humans can be explored by investigating its oldest inhabitants: the tribal people. The Soliga people of the Biligiri Rangana Hills, a tribal community in Southern India, could be among the country's first settlers. This forest-bound, Dravidian speaking group, lives isolated, practicing subsistence-level agriculture under primitive conditions. The aim of this study is to examine the phylogenetic relationships of the Soligas in relation to 29 worldwide, geographically targeted, reference populations. For this purpose, we employed a battery of 15 hypervariable autosomal short tandem repeat loci as markers. The Soliga tribe was found to be remarkably different from other Indian populations including other southern Dravidian-speaking tribes. In contrast, the Soliga people exhibited genetic affinity to two Australian aboriginal populations. This genetic similarity could be attributed to the ‘Out of Africa’ migratory wave(s) along the southern coast of India that eventually reached Australia. Alternatively, the observed genetic affinity may be explained by more recent migrations from the Indian subcontinent into Australia.

   Journal of Human Genetics 56, 258-269 (April 2011) | doi:10.1038/jhg.2010.173

4. At the hearing, I disagreed with Ms Warburton’s submission that, “[H]oney is not generally associated with forests. The word “forest” in the trade mark will most likely be taken by a purchaser to provide a fanciful reference to the fact that the product is a natural product.”  I have provided references, above, to support my observations at the hearing, which show that ‘forest honey’ is a term used to denote honey derived from forests.  I further observe that the applicant’s promotional material (within the examiner’s research provided to the applicant) refers to the product as being, “organic forest honey made from the nectar of hundreds of forest flowers.”

5. I will put the preceding paragraphs in another way.  The material provided to the applicant by the examiner establishes that the Soliga tribe, numbering about 20,000, is a people in Southern India who make their living producing, inter alia, honey.  The reference makes it clear that the Soliga dwell in forests.  The applicant’s promotional material (also supplied to it by the examiner) affirms that the goods are forest honey.  I do not understand why or on what basis these facts were disputed by Ms Warburton in her submissions concerning the trade mark SOLIGA FOREST HONEY.  Ms Warburton’s submissions are so at odds with the material which the trade mark examiner supplied to the applicant that it is difficult to afford her submissions any credence.

6. It might be that the bulk of the forest honey sourced from the Soliga people is sold by the applicant.  However, I do not consider that this impacts on the inherent adaptation of the trade mark to distinguish the goods.  The applicant promotes forest honey sourced from the Soliga tribe as having unique properties – if this is so, other traders should also wish to sell it.  If Australian traders wish to import forest honey from the Soliga people and promote it as such, the words ‘Soliga forest honey’ appear to be a particularly apt description of the goods.

7. Thus, while agreeing with Ms Warburton that the trade mark is very specific, I consider that if this specificity has any effect, it is to increase the descriptive nature of the trade mark and to decrease the quantum of inherent adaptation which might be perceived to be latent within it.

8. The fact that most of the Australian population may not know the word ‘Soliga’ or what it signifies does not affect the inherent qualities of the word or its signification: Eutectic Corporation v Registrar of Trade Marks (1980) 1A IPR 550.  The word ‘Soliga’ is the only one which describes the particular tribe which produces the honey sold under the trade mark.  The word ‘Soliga’ appears in a reference work in the English language and has a specific denotation in relation to the goods – that being the tribe in Southern India which produces the honey.  As such, it is a term which is likely to be needed by other traders who which wish to indicate that they sell forest honey sourced from, or harvested by, the Soliga tribe.

9. In Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd [2010] FCA 1367; (2010) 191 FCR 297; (2010) 90 IPR 117, Middleton J observed at 217:

   As I have indicated, I accept then that other cheese makers in Iran, Australia, or elsewhere, trading or wishing to trade in Australia, may want to use the word “Persia” or “Persian”, on or in connection with fetta, either to signify the style of cheese or to indicate that their cheese comes from the region formerly known as Persia. These traders would have a legitimate interest in using both the geographical and style name to identify their goods. I am also satisfied that there is a likelihood of other traders legitimately wishing to use in Australia the phrase Persian Fetta” in relation to cheese products in the appropriate circumstance.

10. I consider the considerations here to be very much the same: other traders in Australia who import goods may without improper motive want to use the word ‘Soliga’ on or in connection with forest honey to indicate that their forest honey comes from the Soliga tribe if in fact this be the case.  These traders would have a legitimate interest in using both the tribe’s name and the style name to identify their goods.  Accordingly, I am satisfied that there is a likelihood of other traders legitimately wishing to use in Australia the phrase ‘Soliga Forest Honey’ in relation to honey products in the appropriate circumstance.  I would add that, if the Soliga tribe itself wished to export forest honey to Australia, they would have a natural desire to use their own name.

11. Ms Warburton also refers to a New Zealand registration of the trade mark.  I have no knowledge of the circumstances surrounding the acceptance of the trade mark or if the significance of the word ‘Soliga’ became known to the New Zealand Registrar.

12. I do not consider that the trade mark has any inherent adaptation to distinguish the goods of the applicant and a ground for rejection of the trade mark exists under subsection 41(6) of the Act.

13. The applicant has strongly submitted that the trade mark is fanciful. In view of these assertions I consider that it is necessary to observe that if (as Ms Warburton might appear to submit) the goods are not as denoted by the trade mark, a ground for rejection exists in terms of section 43 of the Act on the basis that the use of the trade mark would be deceptive.

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.

2. I reject application 1362598.

Iain Thompson

Hearing Officer

Trade Marks Hearings

15 February 2012