IG Group Limited v International Capital Markets Pty Ltd

[2018] ATMO 132

TRADEMARKSACT 1995

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

Re:Opposition by IG Group Limited to registration of trade mark application 1758694(36) - IC MARKETS LOGO - filed in the name of International Capital Markets Pty Ltd.

DELEGATE:

Jock McDonagh

REPRESENTATION:

Opponent: Fiona Symonds of Davies Collison Cave, Attorneys

Applicant: Brian Elkington of Adams Pluck Attorneys

DECISION:

2018 ATMO 132

Trade Marks Act 1995 (Cth) - Section 52 opposition: ss 42(b), 44, 60 and 62A considered – no grounds established – trade mark to proceed to registration

Background

1. This matter relates to an opposition under section 52 of the Trade Marks Act 1995 (‘the Act’) to the registration of a trade mark filed by International Capital Markets Pty Ltd (‘the Applicant’). Relevant details of the opposed application are set out below.

Application No	1758694
Trade Mark	(‘the Trade Mark’)
FilingDate:	14.03.2016 (‘the Priority Date’)
Services:	Class 36: Financial services, including providing a securities trading system, over the counter derivative services, over the counter foreign exchange services, over the counter contracts for difference; forex brokerage services; providing analyses of securities markets; providing the services of a securities trading broker; securities rating services; providing an on-line computer database in the field of financial information; providing financial news and information services; information, advisory and consultancy services related to all the aforesaid services

1. The Trade Mark was examined in compliance with section 31 of the Act and was advertised as accepted for possible registration in the Australian Official Journal of

Trade Marks on 4 August 2016. IG Group Limited (‘the Opponent’) filed Notice of Intention to Oppose the registration of the Trade Mark on 29 September 2016 and a Statement of Grounds and Particulars (‘the Statement’) on 25 October 2016. Thereafter the Applicant filed Notice of Intention to Defend on 28 November 2016. The parties then filed evidence as provided by the Trade Mark Regulations 1995 (‘the Regulations’).

1. The parties were advised of their right to be heard or to make written submissions. The parties elected to be heard, and also filed outline written submissions prior to the hearing.

1. I heard the matter by in Canberra on 19 March 2018 as a delegate of the Registrar of Trade Marks. The Opponent was represented at the hearing by Fiona Symonds of Davies Collison Cave, Attorneys. The Applicant was represented by Brian Elkington of Adams Pluck Attorneys.

Grounds of Opposition

1. The Opponent nominated the following grounds of opposition under the Act, all of which were pressed at the hearing:

   · Section 44: The Trade Mark is substantially identical with or deceptively similar to a prior application or registration;

   · Section 60: The Trade Mark is similar to a mark that has acquired a reputation in Australia;

   · Section 42(b): Use of the Trade Mark would be contrary to law; and

   · Section 62A: The application was made in bad faith.

1. To succeed in its opposition the Opponent bears the onus of establishing at least one of these four grounds on the ‘balance of probabilities’.1

1. The time at which the grounds of opposition must be established is the date of filing of the application for registration.2

Evidence

1. The evidence consists of the following declarations:

1 Following Gyles J in Pfizer Products Inc v Karam [2006] FCA 1663, [6]-[26], affirmed by the Full Federal Court in Telstra Corporation Limited v Phone Directories Company Ltd [2015] FCAFC 156, [132]-[133].

2 See Southern Cross Refrigerating v Toowoomba Foundry Pty Ltd (1953) 91 CLR 592 at 595

Declarant	Position	Date Made	Annexures
Evidence in Support
Tamas Szabo (‘Szabo’)	CEO of Australian and New Zealand operations of subsidiary of Opponent	03.03.2017	A to AO
Fiona Symons (‘Symons’)	Attorney employed by Applicant’s attorney firm	03.03.2017	FMS-1 to FMS-22
Evidence in Answer
Andrew Budzinski (‘Budzinski’)	CEO global operations of subsidiary of Applicant	09.06.2017	1 to 81
Evidence in Reply
Kevin Algeo	Current CEO of Australian and New Zealand operations of subsidiary of Opponent	17.08.2017	KA-1 to KA-14

1. Szabo provides a history and background to the global and Australian operations of the Opponent, which was formed in the UK in 1974 offering a new concept in financial services - financial spread betting - enabling clients to deal on the price of gold as an index rather than trading the commodity itself. The Opponent is one of the top 200 firms listed on the London Stock Exchange and the FTSE 250. The Opponent commenced operations in Australia in 2002.

1. Szabo states that the Opponent is the owner of the following Australian trade mark registrations, and exhibits supporting extracts taken from the Register of Trade Marks (‘the Register’):

Trade Mark No.	Trade Mark	Classes of Goods/services	Priority Date
1283165	Class     36:     Financial derivative services	30.01.2009

1283166	Class 36: Financial derivative        services; specifically being dealing and execution in relation to contracts for difference	30.01.2009
1283167	Class 36: Financial derivative        services; specifically being dealing and execution in relation to contracts for difference	30.01.2009
1283174	Class 36: Financial derivative        services; specifically being dealing and execution in relation to contracts for difference	30.01.2009
1534916	Class      9:      Encoded magnetic cards relating to financial services only Class   36:       Financial services namely financial derivative        services; financial services relating to        contracts        for difference,        shares, indices,                forex, commodities           and binaries;          financial services relating to betting,          gambling, gaming lotteries and bookmaking; financial services relating to the trading of derivatives, shares, indices, forex, commodities           and binaries; provision of financial information relating to all the aforesaid         services; information, advisory and consultancy services related to all the aforesaid services; financial trading services; all the aforesaid services also provided on-line from a computer database and/or from the Internet, excluding any insolvency services	02.05.2012

1. Symons provides a covering declaration for a number of exhibits collated by the declarant, which comprise the results of her enquiries (including those made on her behalf) about the following general subject areas:

·The examination of the Trade Mark;

·Trade Mark use by the Applicant;

·Comparative trade mark use by the Opponent and Applicant

·Continuing use of the term “IG markets” in business;

·The meaning of “market” in the financial industry;

·The use and registration of trade marks including the word “markets”; and

·The  use  and  registration  of  trade  marks  including  devices  and  incorporating graphs.

1. Budzinski details the history and background of the Applicant in Australia, and details the adoption and use of the Trade Mark in Australia.

1. Algeo provides some comments relating to Budzinki, and in particular it:

·Repudiates the Applicant’s assertion that the Applicant eclipses the Opponent in the marketplace;

·States that the period of coexistence of the parties is two or three years, rather than the eight years quoted in Budzinski;

·Suggests that the parties, in reality, offer very much the same services to the marketplace; and

·Details many interactions between the Applicant and the Opponent where the Applicant referred to itself as “international Capital Markets” rather than “IC Markets”.

1. I now turn to the grounds of opposition.

Section 44 – Identical etc. trade marks

1. Section 44 of the Act relevantly states:

(2)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of servives (applicant’s services) 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  services or closely related  goods; or

(ii)a trade mark whose registration in respect of similar  services or closely related  goods 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  services or closely related  goods.

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

Note4:     The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.

(3)If the Registrar in either case is satisfied:

(a)     that there has been honest concurrent use of the 2 trade marks; or

(b)     that, because of other circumstances, it is proper to do so;

the Registrar may accept the application for the registration of the applicant’s trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant’s trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area.

Note:       For limitations see section 6.

(4)If the Registrar in either case is satisfied that the applicant, or the applicant and the predecessor in title of the applicant, have continuously used the applicant’s trade mark for a period:

(a)beginning before the priority date for the registration of the other trade mark in respect of:

(i)     the similar goods or closely related services; or

(ii)the similar services or closely related goods; and

(b)     ending on the priority date for the registration of the applicant’s trade mark; the Registrar may not reject the application because of the existence of the other trade mark.

Note1:     An authorised use of the trade mark by a person is taken to be a use of the trade mark by the owner of the trade mark (see subsection 7(3)).

Note 2:     For predecessor in title see section 6. Note 3:     For priority date see section 12.

1. Thus to found its ground of opposition under subsection 44(2) the Opponent has to establish to my satisfaction the existence of at least one trade mark registration or application for registration of a trade mark that is owned by a person other than the Applicant and which:

   ·has a priority date earlier than that of the opposed trade mark; and

   ·is registered or made in respect of the same or similar services or closely related goods; and

   ·is substantially identical or deceptively similar to the opposed trade mark.

1. The marks relied upon by the Opponent are those shown above at [10], and each of the marks relied upon by the Opponent have a priority date earlier than that of the Trade Mark and are registered in class 36. The applied for services overlap directly with the services "Financial derivative services; specifically being dealing and execution in relation to contracts for difference" covered by Registration No. 1283167, while the balance of the applied for services are similar to the registered services. The balance of the services are financial services that are offered by providers of "financial derivative services" and would be expected by consumers to be offered by the same financial service providers.

1. The Opponent submitted that the examination of the Trade Mark did not consider substantial identity, only deceptive similarity. The Opponent submitted that 1283167 ought  to  have  been  found  to  be  substantially  identical  with  the  Opponent’s

   registration, citing the established ‘side by side’ test in Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd3 (‘Shell’) and further explanation in Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd.4

1. The Opponent further discussed the Full Federal Court decision in Accor Australia &

   New Zealand Hospitality Pty Ltd v Liv Pty Ltd,5where  was held to be substantially identical to HARBOUR LIGHTS, due to the words being the dominant cognitive cues in both marks.

3 (1961) 109 CLR 407, at 414-415.

4 (2003) 59 IPR 318

5 [2017] FCAFC 56

1. Dominant cognitive cues were also discussed in the recent Full Federal Court decision Pham Global Pty Ltd v Insight Imaging Pty Ltd6 where the following trade marks were found to be substantially identical:

1. The Court disregarded the merely descriptive words ‘clinical imaging’  and ‘radiology’, while considering the word ‘insight’ and, to a lesser extent perhaps, the eye device as being substantially identical.

1. The Opponent submitted that based on these tests, IG MARKETS was substantially identical to IC MARKETS because of the identical cognitive cue.

1. However, the Applicant countered by stating that in applying the tests, the descriptive word MARKETS should be discounted and that the proper comparison to be made is between:

   and

1. I concur with the Applicant’s approach, and I am not satisfied that the competing marks are substantially identical. Therefore, I turn to deceptive similarity.

1. Deceptive similarity is defined in section 10 of the Trade Marks Act as follows:

10  Definition of deceptively similar

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.

1. The test to determine whether trade marks are ‘deceptively similar’ is set out in Shell:

The marks are not now to be looked at side by side [as for substantial identity]. The issue is not abstract similarity, but deceptive similarity … the comparison

6 [2017] FCAFC 83

… is between, on the one hand, the impression based on recollection of the plaintiff’s mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impression that such persons would get from the defendant’s [trade mark].

1. The Court added at 416, that:

[The] deceptiveness that is contemplated must result from similarity; but the likelihood of deception must be judged not by the degree of similarity alone, but by the effect of that similarity in all the circumstances.’ In addition, the test is not one of mere possibility of confusion but of a real tangible danger that a number of persons will be caused to wonder whether the products come from the same source.

1. The principles applicable in determining the standard of “confusion or deception” under s 44(1) of the Act were discussed by French J in Registrar of Trade Marks v Woolworths Ltd (‘Woolworths’)7:

   In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd at 594-595, 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.

7 [1999] FCA 1020 at [50]

(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 Bali Co Inc [1973] HCA 43; (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.”

1. The Opponent submitted that the Trade Mark bears a great similarity to the Opponent’s marks when assessed in terms of the marks’ component parts and in a holistic assessment in the idea of the marks.

1. The concepts ‘deceive’ and ‘cause confusion’ were considered in Pioneer Hi-Bred Corn  Co v Hy-Line Chicks Pty Ltd8:

‘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.

1. Thus I need to decide whether the concurrent use of the respective trade marks in relation to the services in Class 36 is likely to result in a tangible danger of confusion or deception. In this case, I do not consider it would.

1. In coming to this decision it is important that the trade marks are considered in their entirety – ‘it is the whole of the mark as used which is the subject of the comparison with the registered mark.’9

8 (1979) RPC 410 at 423

1. In comparing the respective trade marks it becomes apparent that the Trade Mark shares the word MARKETS with the opponent’s registered trade marks. Upon consideration of the trade marks it is clear to me that there are sufficient visual and conceptual differences to prevent a person of imperfect recollection considering the marks to be such that some people will wonder or be left in doubt about whether the two sets of financial services in question come from the same source.

1. The Trade Mark consists of a device incorporating a bar graph, which morphs into the letter ‘I’ in ‘IC’, which is in turn an abbreviation of the first words of the Applicants business name, and followed with the descriptive word ‘MARKETS’ that is also the last word in the Applicant’s business name.

1. I consider that the relevant market for the parties’ respective services would comprise financially savvy consumers who are considering investing substantial amounts of money. Such consumers would be aware and careful in the selection of various service providers in the market and are unlikely to be making decisions based on momentary recollection or hastily remembered logos.

1. Even allowing for imperfect recollection, it is in my view unlikely that the use of the Trade Mark will deceive or cause confusion because of any similarity it has to the cited marks. I am not satisfied that this ground of opposition has been established.

Section 60: Trade mark similar to trade mark that has acquired a reputation in Australia

37.Section 60 of the Act provides:

60 Trade mark similar to trade mark that has acquired a reputation in Australia

The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

(a)     another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and

(b)     because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

9 Anheuser-Busch Inc v Budejovicky Budvar (2002) 56 IPR 182, 218 (Allsop J).

1. To establish its ground of opposition under section 60 the Opponent must demonstrate that as at the Priority Date there was another trade mark that had acquired a reputation in Australia amongst a significant number of persons in the relevant market such that use of the Trade Mark would be likely to deceive or cause confusion.

1. It is necessary to bear in mind that each of the Opponent’s trade marks listed at [10] above is a separate mark for the purpose of considering the operation of s 60 of the Act in the present case.10

2. Reputation is to be assessed according to the test set out in McCormick & Company Inc v McCormick11 per Kenny J at [81] – [82]:

   What is intended by the word “reputation” in s 60? The word is defined in

   The Macquarie Dictionary as follows:

reputation ... 1. the estimation in which a person or thing is held, esp. by the community or the public generally; repute ... 2. favourable repute; good name ... 3. A favourable and publicly recognised name or standing for merit, achievement, etc. ... 4. The estimation or name of being, having done, etc, something specified.

Cf. The Oxford English Dictionary. In s 60, the word is, I think, apt to refer to “the recognition of the McCormick & Co marks by the public generally”.

Does the evidence establish that in Australia before 9 March 1992 the McCormick & Co marks were recognised by the public generally and, because of that, the use by Mary McCormick of her marks would be likely to cause the public confusion, as for example, by the public’s mistakenly attributing a business connection between the two or attributing her product to the company?

1. Further, at [86], Kenny J said:

In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product.

1. Szabo provides figures for the Opponent’s Australian revenue from the activities of its Australian company, IG Markets, in Australia from 2010 to the Priority Date, along with expenditure on advertising and promotion in Australia for the same period. For confidentiality reasons I will not detail them here, but suffice it to say that they are

10 Qantas Airways Limited v Edwards [2016] FCA 729 (‘Qantas’) at [160]

11 (2000) 51 IPR 102

substantial  and  would  support  the  proposition  that  the  Opponent’s  Australian company has a significant reputation in its market.

1. However, Szabo does not specify which particular trade mark(s) is the subject of the revenue. Notwithstanding the requirement to consider trade marks separately as I noted above at [39], I think it is appropriate to conclude that the Opponent’s trade marks are very well known in the Australian financial market.

1. Putting to one side the question of whether or not the requisite reputation in particular marks has been made out, the Registrar must also be satisfied that because of that reputation the use of the Trade Mark would be likely to deceive or cause confusion.

1. It is to be noted that, unlike a section 44(2) ground of opposition, the ground under section 60 of the Act is not based on the requirement that the allegedly conflicting marks are substantially identical or deceptively similar. However, for the purposes of section 60 of the Act, the degree of similarity between the allegedly conflicting marks

   will  be  a  relevant  consideration  to  be  taken  into  account  when  considering  the likelihood of confusion resulting from use of the opposed mark.12

1. His Honour Yates J observed “the standard of ‘confusion or deception’ under section 60 of the Act is the same as under s 44(1) of the Act. Therefore, the principles [cited in Woolworths at [50]], apply here.”13

2. The Opponent’s submissions were that the effect of the Opponent’s revenue and promotion of its services under similar marks to the Trade Mark were such as to enliven the operation of section 60. As a result, consumers are purportedly likely to be deceived or confused into thinking that the Trade Mark is part of the Opponent’s business operations.

1. The Opponent also submits that the ‘non-distinctive’ graph element of the Trade Mark would be discounted by consumers. I refer to my earlier remarks under the deceptive similarity ground, and conclude that, even given the reputation of the Opponent’s trade marks, I am not satisfied that there is likely to be any deception or confusion.

1. I am not satisfied that this ground of opposition has been established.

12 Qantas at[142]

13 Ibid at [145]

Section 42(b): Trade mark’s use contrary to law

1. Section 42 of the Act relevantly provides:

42 Trade mark scandalous or its use contrary to law

An application for the registration of a trade mark must be rejected if:

(b)       its use would be contrary to law.

1. The Opponent nominated sections 18 and 29 of the Australian Consumer Law (‘ACL’), which are contravened in section 18 when a party engages in conduct in trade or commerce that is misleading or deceptive, or is likely to mislead or deceive customers, and for section 29 where use of the Trade Mark would amount to a false representation in terms of section 29.

1. There must be a ‘real but not remote chance or possibility’ of that a customer will be misled or deceived regardless of whether that chance it is less or more than 50 percent.14

2. As I have found that the use of the Trade Mark is not, at a minimum, likely to “deceive or confuse” under section 60, it follows that the use is not, on the stricter test posited by the ACL15, likely to mislead or deceive, nor do I believe use would amount to a false representation in terms of section 29.

1. I therefore find that the opponent has not established the ground of opposition under section 42(b) of the Act.

Section 62A: Trade mark application made in bad faith

1. Section 62A provides:

   The registration of a trade mark may be opposed on the ground that the application was made in bad faith.

1. In DC Comics v Cheqout Pty Ltd16 (DC Comics) at [62], Bennett J summarised the relevant principles established in UK authorities and set out in Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2)17 (Fry (No 2)), that would be relevant in considering whether an application has been made in breach of s 62A, including:

14  Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 34, per Bowen CJ, Lockhart and Fitzgerald JJ.

15 Parkdale Custom Built Furniture Pty. Limited v Puxu Pty Limited 1982] HCA 44.

16 (2013) 101 IPR 334

17 (2012) 94 IPR 551.

Bad faith is a combined test that involves subjective and objective elements. The subjective element refers to the knowledge of the relevant time of making the application. The objective element requires the decision-maker to decide whether, the light of that knowledge, the relevant person’s behaviour fell short of acceptable commercial standards.

The question is whether conduct falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in the particular area. It is whether the knowledge of the applicant was such that the decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.

1. The Opponent relied upon the authorities I have already cited, and also Hugo Boss AG v Jackson International Trading Company18, where it was held in the context of Section 60 that the adoption of a trade mark bearing a very close resemblance to the Opponent's Mark, in circumstances giving rise to an implication that the mark could not have been adopted without the Opponent's trade mark in mind, raised considerable doubt as to the "good faith" of the Applicant.

1. The Opponent also relied upon dealings between the Opponent and the Applicant19

   prior    to    the    Priority    date    where    the     Applicant    used    the     trade    marks

Mark.

but has not explained why it changed to the Trade

1. The Opponent submits that given the similarity of the Trade Mark to IG MARKETS, the inference can be drawn that the Trade Mark was designed to gain a benefit by appropriating the reputation of the Opponent in Australia. Further it was submitted that a reasonable man or persons adopting proper standards would not have believed that they could use and apply for registration of the Trade Mark, the essential element of which are the words IC MARKETS, in good faith.

1. Bad faith will not be found easily given the serious nature of the allegation. Because of the significant differences I have already discussed under the other grounds, I do not consider that is the case here. I consider that the adoption of a trade mark comprising a unique graph device that incorporates the initials of the first two words

18 (1999) 47 IPR 423 at 439-440

19 Detailed in Szabo Exhibit AO, Symons Exhibit FMS-2 and Budzinski Annexure 13

of the Applicant’s business name followed by the remaining word to be reasonable business practice.

1. I am not satisfied that this ground of opposition has been established.

Decision and Costs

1. Section 55(1) of the Act provides:

   Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

   (a)to refuse to register the trade mark; or

   (b)to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

   having regard to the extent (if any) to which any ground on which the application was opposed has been established.

   Note: For limitations see section 6.

1. Subsection (3) does not apply to these proceedings.

1. The opponent has not established any grounds of opposition. The Trade Mark application may accordingly proceed to registration one month from the date of this decision. If the Registrar has been served with notice of appeal before that time, I direct that registration of the Trade Mark shall not occur until the appeal has been decided or discontinued.

1. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the opponent under section 221 of the Act in terms of Schedule 8 of the Regulations.

Jock McDonagh Hearing Officer

Hearings and Oppositions 22 August 2018