Hybrid-Ag Pty Ltd v Scrub Daddy Inc
[2023] ATMO 156
•13 October 2023
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Hybrid-Ag Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by Scrub Daddy Inc for removal of trade mark number 1767019 (class 21) – Scrub Daddy – in the name of Hybrid-Ag Pty Ltd
Delegate: | Nicholas Barbey |
Representation: | Opponent: Wrays Pty Ltd Applicant: Shauna Ross of counsel instructed by Meyer West IP |
Decision: | 2023 ATMO 156 Trade Marks Act 1995 (Cth) – application under ss 92(4)(a) and (b) – removal sought for entire registration – evidence does not establish that the trade mark has been used in good faith during the relevant period or an obstacle to use – discretion not exercised – registration to be removed |
Background
Hybrid-Ag Pty Ltd (‘Opponent’) is the owner of the following Australian trade mark registration (‘Registration’):
Trade mark: Scrub Daddy (‘Trade Mark’)
Registration number: 1767019
Filing date: 27 April 2016
Specification: Class 21: artificial sponges for household purposes; sponge material for household cleaning; sponges for household cleaning; sponges for household purposes; wiping cloths for household use
(‘Registered Goods’)
On 18 June 2021, Scrub Daddy Inc (‘Applicant’) filed a non-use application based on ss 92(4)(a) and (b) of the Trade Marks Act 1995 (Cth) (‘Act’) seeking removal of the Trade Mark from the Australian Register of Trade Marks (‘Register’). The non-use application sought complete removal of the Registered Goods.
The Opponent filed a notice of intention to oppose the non-use application followed by a statement of grounds and particulars. In turn, the Applicant filed a notice of intention to defend the non-use application. The parties subsequently filed evidence in accordance with reg 9.16 of the Trade Marks Regulations 1995 (Cth) (‘Regulations’).
The Applicant requested an oral hearing and filed submissions on 10 July 2023 (‘Submissions’). The Opponent did not file submissions and took no further part in this proceeding. As a delegate of the Registrar of Trade Marks (‘Registrar’), I heard this matter by video conference on 17 July 2023. Shauna Ross of counsel presented submissions on the Applicant’s behalf.
Legal framework
Section 92 of the Act relevantly provides:
Application for removal of trade mark from Register etc.
(4)An application under subsection (1) or (3) (non-use application) may be made on either or both of the following grounds, and on no other grounds:
(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:
(i) to use the trade mark in Australia; or
(ii) to authorise the use of the trade mark in Australia; or
(iii) to assign the trade mark to a body corporate for use by the body corporate in Australia;
in relation to the goods and/or services to which the non-use application relates and that the registered owner:
(iv) has not used the trade mark in Australia; or
(v) has not used the trade mark in good faith in Australia;
in relation to those goods and/or services at any time before the period of one month ending on the day on which the non-use application is filed;
(b) that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non-use application is filed, and, at no time during that period, the person who was then the registered owner:
(i) used the trade mark in Australia; or
(ii) used the trade mark in good faith in Australia;
in relation to the goods and/or services to which the application relates.
Onus and relevant period
The non-use application was filed on 18 June 2021 and complies with s 93 of the Act.[1] It nominated grounds under ss 92(4)(a) and (b) of the Act. However, given the way that s 92(4)(a) is expressed, this provision essentially merges with s 92(4)(b) once a trade mark has been registered for 5 years.[2] Accordingly, it is only necessary to consider the s 92(4)(b) ground.
[1] In respect of the s 92(4)(b) ground, see Act s 93(2) prior to amendments to that section brought about by the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) sch 1 pt 3. The amended s 93(2) applies to trade mark applications filed from 24 February 2019 onwards.
[2] See, eg, Moores MDP Pty Ltd v Moore Stephens International Licensing [2023] ATMO 86, [23]; Auswool Products Pty Ltd v Source Co International Pty Ltd [2022] ATMO 173, [9]; Bangkok Broadcasting & T.V. Co Ltd v Seven Network (Operations) Limited [2021] ATMO 78, [21]; Live Entertainment Investments III Pty Ltd v The Education Group Pty Ltd [2018] ATMO 3, [22].
The Opponent bears the onus of rebutting the non-use allegation.[3] To rebut the non-use allegation, the period in which the Opponent must establish use in good faith of the Trade Mark for the Registered Goods in Australia is the three year period ending on 18 May 2021 (‘Relevant Period’). If satisfied that it is reasonable to do so, the Registrar may decline to remove the Trade Mark from the Register even if the ground on which the non-use application was made has been established.[4]
[3] Act s 100(1)(c).
[4] Ibid s 101(3).
I proceed on the basis that the standard of proof required is the ordinary civil standard based on the balance of probabilities.[5]
[5] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ) in respect of oppositions under s 52 of the Act.
Evidence
The following declarations were filed:
| Evidence in Support (‘EIS’) |
| · Declaration made on 18 February 2022 by Tom Rowe (Founder and Managing Director of the Opponent) with Annexures A to D (‘Rowe 1’). |
| Evidence in Answer (‘EIA’) |
| · Declaration made on 23 May 2022 by Peter Byrne (Managing Director of Combined Group of Companies Pty Ltd, the Applicant’s exclusive Australian distributor) with Annexures PB-1 to PB-28 and Confidential Annexure A (‘Byrne Declaration’).
· Declaration made on 23 May 2022 by Magdalena Rousseau (legal practitioner and trade mark attorney with Meyer West IP) with Annexures MR-1 to MR-15 (‘Rousseau Declaration’). |
| Evidence in Reply (‘EIR’) |
| · Declaration made on 26 July 2022 by Tom Rowe with Exhibits TR-1 and TR-2 (‘Rowe 2’). |
EIS
According to Rowe 1, the Trade Mark was created and adopted in 2009 for use in connection with household sponges and cloths. Mr Rowe states that the Registered Goods ‘are sold exclusively through a number of Campus&Co stores in the state of Victoria’.[6] He explains that Campus&Co (‘C&C’), which has 74 stores nationwide, ‘is run by a global team of volunteers’ and its focus ‘is to provide high quality, low priced groceries targeted to mothers shopping for families’.[7]
[6] Rowe 1, [8].
[7] Ibid.
Mr Rowe declares that the Registered Goods have been sold under or by reference to the Trade Mark consistently during the Relevant Period. To support this, reliance is placed on a tax invoice dated 15 April 2021 issued by ‘[C&C] Wangaratta’ (‘Invoice’) as well as a C&C brochure that was circulated in February 2021 (‘Brochure’). Rowe 1 asserts that it is the Opponent’s intention to continue use of the Trade Mark on the Registered Goods in Australia.
EIA
According to the Byrne Declaration, the Applicant filed the following Australian trade mark application which is currently under examination (‘Pending Application’):
Trade mark: SCRUB DADDY (‘SD Mark’)
Application number: 2001595
Filing date: 8 April 2019
Specification: Class 21: cleaning sponges; scrub sponges; sponges for household purposes
Mr Byrne states that the Applicant ‘commenced its business operations in early 2011 in the United States as a manufacturer of goods including household cleaning sponges under the [SD Mark]’.[8] The Applicant is headquartered in Pennsylvania and it has design and manufacturing facilities throughout the United States of America together with distribution centres around the world.
[8] Byrne Declaration, [14].
The SD Mark was created in 2011 for use in relation to a range of sponges and similar products which are ‘made of a unique polymer material specifically designed to change texture in certain conditions’.[9] The Applicant’s sponge featured on an episode of ‘Shark Tank’ which aired in the United States of America on 15 October 2012. Following the broadcast of this episode, Mr Byrne declares that ‘sales of the SCRUB DADDY have increased exponentially worldwide’ and the Applicant’s ‘SCRUB DADDY product was hailed as the biggest deal of all’ made on ‘Shark Tank’.[10]
[9] Ibid [15].
[10] Ibid [25]–[26].
Since 2012, the Applicant ‘has invested a great deal of time and money in the design and continued development of its products that are marketed and sold under the [SD Mark]’.[11] In Mr Byrne’s opinion, the Applicant ‘has grown into a very successful and well known international company’ that currently exports products bearing the SD Mark to 28 countries.[12] He states that the Applicant expanded into the Australian market in 2014 and it has since developed an extensive Australian customer network which includes retailers such as Coles and Bunnings Warehouse.
[11] Ibid [23].
[12] Ibid [28].
The Applicant filed an application for protection of the SD Mark with the United States Patent and Trademark Office on 15 February 2011.[13] It subsequently obtained trade mark protection of the SD Mark in various jurisdictions including Canada, Europe and New Zealand. In addition to its Pending Application, the Applicant has Australian trade mark applications pending for ‘SCRUB MOMMY’, ‘SCRUB DADDY LEMON FRESH’ and ‘SCRUB DADDY COLORS’.[14]
[13] See trademark serial number 85242447.
[14] See Australian trade mark application numbers 1959341, 1959343, 2141762.
The Byrne Declaration discusses an earlier Australian trade mark application for the SD Mark that was filed by the Applicant on 17 March 2017.[15] Mr Byrne claims that the Applicant became aware of the Trade Mark when this application received an adverse examination report. The Applicant subsequently sent a letter of demand to the Opponent in November 2017 demanding that the Trade Mark be withdrawn. In December 2017, the Opponent responded to this letter rejecting, among other things, this demand.[16]
[15] See Australian trade mark application number 1832416. The lapsing date of this application was 29 March 2019.
[16] Byrne Declaration, Annexure PB-28.
The Lunt Declaration details Mr Lunt’s visit to the property address listed on the Invoice. Mr Lunt drove to the address which ‘was about 3km outside the city centre of Wangaratta’ on 1 March 2022.[17] Upon arrival, he states that there ‘was no signage that identified the premises as the Wangaratta branch of [C&C]’ and there ‘was no doorbell or intercom system that was visible’ at the closed entrance gate.[18] Mr Lunt remarks that ‘[o]ne of the signs on the gate to the entrance of the premises read “No Entry Authorised Persons Only”’.[19] Annexed to the Lunt Declaration is a photograph of the closed gate encountered at the property address.[20]
[17] Lunt Declaration, [8].
[18] Ibid [9]–[10].
[19] Ibid [10].
[20] Ibid Annexure DL-3.
The Rousseau Declaration annexes several exchanges made between the parties from November 2017 to March 2020 (‘Correspondence Exchange’). Suffice to say, each party believes it is entitled to the exclusive use of ‘SCRUB DADDY’ within Australia. The Rousseau Declaration provides a copy of the statement of grounds and particulars filed by the Opponent on 16 March 2018 (‘2018 SGP’) in respect of an earlier non-use application made against the Trade Mark.[21] The 2018 SGP states that the Trade Mark was selected by the Opponent after a meeting with an overseas supplier in March 2016. Ms Rousseau also undertook various online searches including of the Opponent’s website accessible at hybridag.com.au, the property address and buyer listed on the Invoice as well as a general search of the term ‘campus&co wangaratta’. The results obtained from these searches are annexed to the Rousseau Declaration.
EIR
[21] The earlier non-use application was filed by the Applicant on 12 December 2017. Following the filing of the 2018 SGP by the Opponent, the Applicant did not file a notice of intention to defend.
Rowe 2 responds to claims made in the EIA regarding the property address listed on the Invoice. Relevantly, Mr Rowe highlights that Mr Lunt did not enter the premises of the address and Ms Rousseau only conducted online searches of same. To rebut the EIA, Mr Rowe filmed himself visiting the address in July 2022 (‘Video’). Exhibited to Rowe 2 is the Video together with stills captured from the Video which Mr Rowe recorded while at the address.
In Mr Rowe’s view, the Video shows ‘the [C&C] store is readily accessible, the set-up of the store, and the [Registered] Goods on display’.[22] Further, the Video is said to illustrate that the Registered Goods bearing the Trade Mark are currently available for purchase. Rowe 2 reiterates that the Registered Goods bearing the Trade Mark were offered for sale during the Relevant Period and confirms the Opponent’s intention to continue using the Trade Mark.
[22] Rowe 2, [11].
Discussion
The central issue for determination is whether the Opponent (or an authorised user) has used the Trade Mark in Australia in relation to the Registered Goods during the Relevant Period. If the evidence establishes that the Opponent (or an authorised user) has, then the non-use allegation is taken to have been rebutted. If the evidence fails to establish use of the Trade Mark for all the Registered Goods, then consideration will turn to whether it is reasonable to invoke the Registrar’s discretion to preserve the Trade Mark for any goods for which it has not been used.
The evidence must demonstrate ‘use as a trade mark’. That is, the Trade Mark must have been used as a badge of origin.[23] The extent of use required is not onerous and a ‘relatively small amount of use’ may be sufficient to rebut a non-use application.[24] Potentially, a single use of a trade mark in good faith during the relevant period may suffice to prevent removal.[25] However, if reliance is placed on a solitary example of use, it should be established by ‘overwhelmingly convincing proof’.[26]
[23] See Coca-Cola Co v All-Fect Distributors Ltd [1999] FCA 1721, [19] (Black CJ, Sundberg and Finkelstein JJ) wherein it was observed that ‘[u]se “as a trade mark” is use of the mark as a “badge of origin” in the sense that it indicates a connection in the course of trade between goods and the person who applies the mark to the goods’.
[24] E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15, [64] (French CJ, Gummow, Crennan and Bell JJ).
[25] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).
[26] Nodoz Trade Mark [1962] RPC 1, 7 (Wilberforce J).
In Woolly Bull Enterprises Pty Ltd v Reynolds, Drummond J recognised that ‘use in good faith’ has a well understood meaning in terms of s 92 of the Act, namely it is ‘real, as opposed to token, use in a commercial sense’.[27] In Seven Network (Operations) Limited v 7-Eleven Inc, Thawley J provided the following summary of ‘use in good faith’:
[27] [2001] FCA 261, [16].
In [E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15] at [62] (Heydon J agreeing at [87]), French CJ, Gummow, Crennan and Bell JJ confirmed the following about the meaning of “use in good faith” in s 92(4)(b):
(a) bona fide use must be “ordinary and genuine use” judged by commercial standards;
(b) bona fide use must be “perfectly genuine”, “substantial in amount”, and “a real commercial use on a substantial scale”;
(c) bona fide use is not “some fictitious or colourable use but a real or genuine use”;
(d) use of a trade mark for a purpose other than deriving profit and establishing goodwill is not use as required by the legislation;
(e) contriving use for the purpose of defeating a trade rival’s plans will lack the necessary quality of genuineness;
(f) however, a use does not cease to be genuine even if it only occurs after an appreciation that a registration was vulnerable to an attack on the grounds of non-use;
(g) in deciding that a use is not genuine, a court may be influenced by the quantum of sales;
(h) whilst a single act of sale may not be sufficient to prevent removal … in the case of genuine use, a relatively small amount of use may be sufficient to constitute “ordinary and genuine” use judged by commercial standards.[28]
Use of the Trade Mark during the Relevant Period
[28] [2023] FCA 608, [35] (citations omitted).
The Opponent’s evidence is sparse, even when viewed in its most favourable light. Four examples of use have been provided. Namely, a photograph of a ‘scrub cloth’, the Video, the Brochure and the Invoice. The first two examples may be disposed of simply. The photograph is undated and the Video was filmed in July 2022, some 13 months after the Relevant Period. Plainly, neither establishes use of the Trade Mark during the Relevant Period. As such, this evidence does not assist the Opponent.
In relation to the Brochure, this evidence consists of a photograph of seven printed pages depicting images of products alongside their retail price. The pages have been presented in a jumbled fashion whereby each page is partially obscured due to the pages being scattered on top of one another. They are also unpaginated which suggests that the Brochure may not be a finalised document. Be that as it may, one of the pages is titled ‘Instore Specials’ with a byline of ‘Wangaratta | 1st – 28th February 2021’ and contains the following image:
Leaving aside whether this example demonstrates use of the Trade Mark with additions not substantially affecting its identity,[29] the fundamental difficulty faced by the Opponent is that insufficient particulars have been provided regarding its alleged circulation. Mr Rowe simply asserts that the Brochure was ‘produced and circulated by [C&C] to its listed customer base’ on ‘one occasion in February 2021’.[30] No further information, such as C&C’s usual circulation method or the size of its customer base,[31] is disclosed. It is therefore unclear how the Brochure was publicly circulated or whether this in fact occurred. Given there is no documented connection between Mr Rowe (or the Opponent) and C&C, the basis upon which Mr Rowe can speak to C&C’s marketing activities is not readily apparent. Likewise, no corroborative evidence has been provided, such as an email by C&C to its ‘listed customer base’ enclosing the Brochure or a declaration by a C&C employee confirming its public circulation. The nature of the Brochure combined with the conspicuous absence of particulars surrounding its alleged circulation are such that it falls short of constituting ‘overwhelmingly convincing proof’ that the Trade Mark was used during the Relevant Period.
[29] Act s 100(3)(a).
[30] Rowe 1, [10].
[31] Which is particularly relevant given the Brochure pertains to ‘Instore Specials’ of the Wangaratta store.
Turning to the Invoice addressed to Sureweld Pty Ltd (‘Sureweld’), which lists eight products purchased on 15 April 2021. Relevantly, one product on the Invoice is itemised as ‘Scrub Daddy’ with a purchase price of $5.95. The Applicant criticised the Invoice and asserted that this was not use in good faith because it was not a genuine commercial use. Attention was drawn to the date of the alleged sale occurring after the Correspondence Exchange and only 12 days ‘inside the 5 year period since registration of the Trade Mark that was the statutory threshold for the availability of section 92(4)(b)’.[32] The Applicant reasoned that this timing ‘strongly suggests’ the Invoice was ‘for the purpose of being able to contend that there was a sale if a second non-use application were filed’.[33]
[32] Submissions, [32].
[33] Ibid [33].
The Applicant pointed out additional ‘unexplained curiosities’ in the evidence filed which it believed reinforced the colourable nature of the Invoice. Emphasis was placed on the fact that the Opponent’s evidence only contains a solitary invoice. In the Applicant’s opinion, this paucity of evidence is at odds with Mr Rowe’s contention that goods bearing the Trade Mark ‘have been sold consistently during the Relevant Period’[34] and it is ‘rather surprising given the [Opponent] claims that it has been using the Trade Mark since 2009’.[35] Aside from Mr Rowe’s bare assertion, it was observed that there is no evidence to establish that the product sold by C&C to Sureweld emanated from the Opponent.
[34] Rowe 1, [9] (emphasis added).
[35] Submissions, [31].
The Submissions also drew focus to the Opponent’s evasion of other issues raised by the EIA. For example, the Opponent did not address the seven year discrepancy arising between the 2018 SGP which claimed that the Trade Mark was selected sometime after March 2016 and the evidence in this proceeding which states that the Trade Mark was ‘created and adopted’ in 2009.[36] Equally, the Opponent did not attempt to clarify the apparent connection between the Opponent and Sureweld disclosed in the EIA which revealed that Mr Rowe and a director of Sureweld are both trustees of a third party charity.[37] As the Applicant opined, this connection could have been easily addressed in the EIR by either providing a declaration from an officer of Sureweld attesting to its commercial relationship with C&C or from Mr Rowe confirming that Sureweld is a genuine customer.
[36] Rowe 1, [6].
[37] Rousseau Declaration, Annexure MR-14.
In my assessment, there is considerable merit in the submissions advanced by the Applicant. I accept that if the use is real and genuine, then the Opponent’s motive behind using the Trade Mark is largely irrelevant in determining the question of use in good faith.[38] It follows that the timing of the Invoice, which documents a sale after the Correspondence Exchange and just prior to the expiration of the non-use grace period provided for under the Act, is not fatal to the Opponent’s prospects of establishing use in good faith. However, the Invoice will only be use in good faith if it is a real or genuine use.[39]
[38] See, eg, Lodestar Anstalt v Campari America LLC [2016] FCAFC 92, [120] (Nicholas J).
[39] Electrolux Ltd v Electrix Ltd (1953) 71 RPC 23, 42 (Morris LJ).
Here, considerable doubt has been cast over the genuineness of the Opponent’s use. Taken at its highest, the Opponent’s evidence contains a solitary sale of one product bearing the Trade Mark. Judged by any commercial standard, the single sale of a product for $5.95 over the span of approximately 13 years is unlikely to reflect a genuine intention to derive profit or establish goodwill. Rather, it is more probable than not that this was simply a token use by the Opponent. This is especially so given the Opponent’s evidence is utterly devoid of, for example, any revenue or quantity figures relating to the alleged sales of the Registered Goods bearing the Trade Mark. The existence of these figures, in some form or another, would naturally be expected if the Trade Mark had been used for genuine commercial purposes throughout the alleged period of use.
Accordingly, the Opponent has not established that the Trade Mark has been used in good faith in relation to the Registered Goods during the Relevant Period.
Obstacles to use
The Opponent did not submit that there were any obstacles to the use of the Trade Mark during the Relevant Period. For completeness, there is nothing to suggest that an obstacle prevented good faith use of the Trade Mark in relation to the Registered Goods during the Relevant Period.
Accordingly, the Opponent has not rebutted the s 92(4)(b) ground for removal in respect of the Registered Goods.
Registrar’s discretion
Pursuant to s 101 of the Act, the Registrar has a broad discretion not to remove an unused trade mark if it is satisfied that it is reasonable to do so. In PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd, the Full Federal Court provided the following insights regarding the discretion under s 101(3) of the Act:
The following propositions are relevant to the exercise of this discretion:
(1) It is broad and is unfettered in the sense that there are no express limits on it. It is to be understood as limited only by the subject-matter, scope and purpose of the legislation and, in particular, by the subject-matter scope and purpose of Part 9 of the Trade Marks Act.
(2) The scope and purpose of the Trade Marks Act strikes a balance between various disparate interests. On the one hand there is the interest of consumers in recognising a trade mark as a badge of origin of goods or services and in avoiding deception or confusion as to that origin. On the other is the interest of traders, both in protecting their goodwill through the creation of a statutory species of property protected by the action against infringement, and in turning the property to valuable account by licensing or assignment. …
(3) The particular purpose of Part 9, within which s 101 falls, is to provide for the removal of unused trade marks from the Register. It is designed to protect the integrity of the Register and in that way the interests of consumers. At the same time, it seeks to accommodate, where reasonable to do so, the interests of registered trade mark owners. Accordingly, the Court must be positively satisfied that it is reasonable that the trade mark should not be removed. The onus in this respect lies on the trade mark owner to persuade the Court that it is reasonable to exercise the discretion in favour of the owner. …
(4) The discretion in s 101(3) is expressed in the present tense. It requires consideration of whether, at the time that the Court is called upon to make its decision, it is reasonable not to remove the mark.
(5) The range of factors considered in the exercise of the discretion has included whether or not:
(a) there has been abandonment of the mark;
(b) the registered proprietor of the mark still has a residual reputation in the mark;
(c) there have been sales by the registered owner of the mark of the goods for which removal was sought since the relevant period ended;
(d) the applicant for removal had entered the market in knowledge of the registered mark;
(e) the registered proprietors were aware of the applicant’s sales under the mark;
(f) A further factor, explicitly noted in s 101(4), but which falls within the scope of the discretion in s 101(3), is whether or not the trade mark under consideration has been used by its registered owner in respect of similar goods or closely related services.[40]
[40] [2021] FCAFC 128, [153] (Jagot, Nicholas and Burley JJ) (emphasis altered) (citations omitted).
Despite bearing the burden of persuasion, the Opponent has filed no submissions regarding the discretion nor has it furnished any cogent evidence that would favour the discretion being exercised. By contrast, the Applicant has directed me to its private interest in having the Trade Mark removed given its pending applications on the Register. In these circumstances, it is not reasonable to exercise the discretion to preserve the Registration. Simply put, the public interest in protecting the integrity of the Register is not served by allowing the Trade Mark to remain registered. As such, I decline to exercise the discretion.
Decision
The ground for removal under s 92(4)(b) of the Act has been established in respect of all the Registered Goods. I direct that trade mark registration 1767019 be removed from the Register one month from the date of this decision. In the event of an appeal from this decision, trade mark registration 1767019 shall not be removed from the Register until the appeal has been discontinued or dismissed, or in the event of a decision from the court, the Registration will be subject to that decision.
Costs
The Applicant has sought an award of costs. Costs usually follow the event. Accordingly, I award costs against the Opponent per s 221 of the Act in the amounts set out in Schedule 8 of the Regulations.
Nicholas Barbey
Hearing Officer
Delegate of the Registrar of Trade Marks
13 October 2023
0
9
6