Intel Corporation v Intelec Engineering Pty Ltd

[2006] ATMO 38

TRADE MARKS ACT 1995

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

Re:Opposition by Intel Corporation to registration of trade mark application 940831(9)(16)(35)(42) Intelec Engineering proceeding in the name of Intelec Engineering Pty Ltd.

Delegate:

Ian Thompson

Representation:

Applicant

Julia Baird of Counsel

Opponent

Ron Webb of Counsel

Decision:

1. s52 opposition – ss44 and 60, registration refused ‘confusion’ discussed – costs awarded to opponent.

Background

1.    Intelec Engineering Pty Ltd ('the applicant') of Ultimo, New South Wales, has filed application to register a trade mark, current details of which are:

App No:  940831

Filing Date:  22 Jan 2003

Acceptance Date:  25 September 2003

Goods:Class: 9 Custom software applications and device drivers, automatic test programs, electronic circuit boards, integrated circuit memories, operating systems programs, custom analogue and digital circuits

Class: 16 Instructional and teaching material including operating manuals and course notes

Class: 35 Project management; requests for tender; tender development; tender evaluation and design and product validation

Class: 42 Analogue and digital circuit design; circuit board analysis to determine suitability for automatic test; printed circuit board design with optimisation for electromagnetic compatibility (EMC) and noise minimisation; configuration management of equipment and documentation; development and implementation of equipment support plans detailing scheduled and corrective maintenance; research and evaluation of new hardware and software

Trade Mark:  INTELEC ENGINEERING

2.    On 24 December 2003, Intel Corporation of Santa Clara, California, ('the opponent'), filed Notice of Opposition (‘the Notice’) to the registration of the trade mark.  The Notice includes most of the available grounds under the Trade Marks Act 1995 (‘the Act’).

3.    Evidence in support was served and filed – as was evidence in answer and evidence in reply. 

4.    A hearing was held before me, as a delegate of the Registrar of Trade Marks, in Sydney on 16 March 2006.  Mr Ron Webb of counsel represented the opponent and Ms Julia Baird of counsel represented the applicant.

Evidence

5.    There are three declarations filed in relation to these proceedings, these being by Phillip Ashley Downs, Marketing Manager of Intel Australia Pty Ltd (in support), a subsidiary of the opponent; Germeen Kaldas, sole Director of the applicant (in answer); and, Philip Cronin, General Manager of Intel Australia and New Zealand Pty Ltd (in reply)

6.    Put briefly, the evidence of the opponent shows that it is the owner in Australia of a number of trade marks, the sole or dominant feature of which, INTEL, is extremely well-known in relation to the IT industry in general and personal computers in particular.  I quote from the decision of the Registrar’s Delegate, Claudia Murray in Intel Corporation v Andrew Tynan 2003 ATMO 41

Mr Dows gives a brief history of the Intel Corporation, which he describes as the world's leading developer and manufacturer of microprocessors and the pre-eminent supplier of such products and other building blocks to the computing and internet industries worldwide. He explains that Bob Noyce, one of the inventors of the integrated circuit, and Gordon Moore founded the company in 1968. The company was originally founded to build semiconductor memory products, and was named INTEL almost from the outset - this being a coined word drawn from the words "integrated" and "electronics". Mr Dows reports that the opponent is today the world's largest semiconductor manufacturer and that it employs over 80,000 people in offices and facilities worldwide.

Mr Dows describes the expansion of the opponent's business from microprocessors to the sale of numerous additional products as diverse as clothing items, toys and watches, and the provision of services related to the internet, e-commerce technologies, communications, and computers. He describes the opponent as having a strong presence in Australia, since its subsidiary, Intel Australia Pty Ltd, was founded here in October 1979. He supports this claim with very considerable sales and advertising figures for the years 1998 to 2001. Mr Dows also describes and provides substantial Australian reimbursement figures for a logo licensing program known as INTEL INSIDE launched in over 180 countries, including Australia, in 1991. By means of this novel program, INTEL, as a microprocessor manufacturer, reached out to the ultimate consumers of computers having those microprocessors as component parts, so that purchasers were able to look for and identify the presence of INTEL components in the finished machine.

Mr Dows provides details of many Australian registrations owned by the opponent either wholly comprising or prominently featuring the trade mark INTEL, which cover goods and services in classes 9, 14, 16, 18, 21, 25, 28, 35, 36, 37, 41 and 42. He also provides, in addition to other supporting documentation, Exhibit PD-3, which is a copy of an extract of an article from the journal "Business Week", dated 6 August 2001. The article is headed "The Top 100 Brands. Our first ranking of the world's most valuable brands", and it identifies the opponent's INTEL trade mark as sixth in that list of 100, describing its field of activity as "technology".

7.    The declaration of Mr Dows referred to at paragraph 5 essentially provides the above information and fills in the gaps between his prior declaration referred to by Delegate Murray and the current proceedings.

8.    Ms Kaldas is sole director of the applicant.  She avers that “Intelec Engineering was selected as an abbreviation to Intelligent Electrical Engineering”.

9.    Ms Kaldas also states that the applicant was incorporated in 1997 to provide project management to the Department of Defence which remains 99% of the applicant’s market.  In the role of project manager, the applicant provides engineering, technical and administrative services, I gather in the IT and/or electronic warfare (‘EW’) area, to the Royal Australian Navy (the ‘RAN’).  The applicant is regional agent for a range of automatic test equipment, again I gather, in the IT or EW area, which it has sold to the RAN.  The amount of sales of these goods in 2003 to the RAN were moderate but it is not clear to me from the declaration that they actually carried the trade mark of the applicant.

10.   There is no other evidence in Ms Kaldas’s declaration that the applicant actually carries on a trade in goods.

11.   I have further reservations whether the evidence of Ms Kaldas actually reveals use of a trade mark or the trade mark as it appears on the application.  While Ms Kaldas states that the applicant’s trade mark appears on training and instructional material prepared by the applicant and provided to the RAN, these appear thus:

12.   I am concerned that the trade mark which the applicant says it uses is not the one which is the subject of this application.  Each of the above examples shown above has strong graphical elements which are not present in the applied for trade mark;  the word INTELEC is prominent in a way that it is not in the application, and there is a disk or circle appearing in the trade mark which does not appear in the applied for trade mark.  It is not clear from the evidence when the signs, which Ms Kaldas describes as the applicant’s name and logo, came into being.

13. Section 7 of the Act provides:

7  Use of trade mark

(1)         If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may decide that a person has used a trade mark if it is established that the person has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark.

14.   As the alterations or additions do substantially affect the identity of the trade mark,[1] the exhibits to the evidence do not reveal any use of the trade mark as filed.

[1] The Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1961) 109 CLR 407

15.   Ms Kaldas’s declaration uses much terminology which is not explained and consequently the import of much of the declaration is impossible to grasp without further explanation.  It is possible that this is because of security implications.  However, the exact meaning of what Ms Kaldas says only becomes relevant if the opponent establishes its opposition and I am required to consider whether the trade mark of the applicant has been used honestly and concurrently.

16.   Mr Cronin’s declaration brings into evidence the applicant’s Internet website – – the material from this website does not dispel my reservations as to whether the specification of goods in Class 9 of the opposed application is an accurate reflection of reality.

Grounds

17. Mr Webb argued the opposition in terms of grounds under sections 44, 60 and 43; however, for reasons that will become obvious, I will discuss only sections 44 and 60. For the sake of completeness, I now note that those other grounds listed on the Notice have not been established.

18. I will also remark that, if the opposition in terms of section 44 is successful, the honest concurrent user provisions of the Act are not available to the applicant. This is because the applicant’s evidence reveals no use of the trade mark as filed, the examples which purport to show the trade mark as used being not substantially identical to the trade mark which is the subject of the application. Additionally, I have a doubt that the applicant has used any trade mark on Class 9 goods and, with one customer for its services, a lack of confusion might not be surprising. Further, if the opposition is successful in terms of section 60, the honest concurrent user provisions, under the scheme of the Act, are not in any event available to the applicant: McCormick and Co Inc v. McCormick (2000) 51 IPR 102.

Section 44

19. Section 44 of the Act relevantly provides:

44  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.

Note 4:            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.

(2)         Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:

(a)         it 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 services 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(2).

20.   At the outset, I must stress that what I am to consider here is not the ‘real world’ as regards the applicant’s goods and services.  I have already, above, expressed doubt as to whether the applicant actually uses its trade mark on goods – or that, in reality, it uses the trade mark as filed: the trade marks appearing in the evidence are different to that as filed.  However, it is the trade mark as filed which I must consider and as notionally used in respect of all the goods and services which appear on the application and marketed to the Australian market at large – not just the supply of services to the Australian Defence Department as is now seemingly the case: Re Smith Hayden and Co's Application (1946) 63 RPC 97 at 101.8.

21.   The registrations on which the opponent relies include computer consulting services in Class 42 as well as a large range of computer hardware, software and firmware in Class 9.  I do not think that there was any disagreement between the parties that the applicant’s goods and services as stated on the application are similar or closely related to those of the opponent.

22.   Thus, as the registered trade marks on which the opponent relies all have priority dates earlier than that of the opposed application, the question essentially resolves itself to whether the trade marks are deceptively similar.  These registrations of the opponent have the word INTEL as the dominant or main component as in the examples below:

INTEL  

(245217)

(541003)(557557)

23.   The opponent also uses its INTEL trade mark with purely descriptive matter as in, INTEL CREATE & SHARE (744859)

24.   Deceptive similarity is defined within section 10 which provides:

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.

25.   In Registrar of Trade Marks v Woolworths Ltd (1999) 93 FCR 365 at 382 French J, with Tamberlin J agreeing, made the following propositions:

‘(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 Co 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."’

1. The comparison is to be made not side-by-side and taking all of the surrounding circumstances into account: Dixon and McTiernan JJ in Australian Woollen Mills Ltd v F.S.Walton & Co Ltd, (1937) 58 CLR 641 at page 658 said:

   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.

2. And Parker Jin Re Application by the Pianotist Co Ltd (1906) 1A IPR 379 at 380; 23 RPC 774 at 777, said:

   You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion -- that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods -- then you may refuse the registration, or, rather, you must refuse the registration in that case.

   28. In the comparison of trade marks under section 44 of the Act, Branson J in NEC Corporation v Punch Video (S) Pte Limited [2005] FCA 1126 discussed the fame of the opponent’s NEC trade mark, she said:

   The NEC mark has been in use as a trade mark since 1961. It is not in dispute that NEC and the NEC Group have extensively advertised and promoted their goods and services under the NEC mark throughout the world including in Australia. Nor is it in dispute that the NEC mark has consequently become an extremely well-known trade mark or brand. I am satisfied that as at 19 November 1999, the priority date for the registration of the Trade Mark, NEC enjoyed a substantial reputation in the NEC marks in Australia and elsewhere.

   29. .That discussion was in the context of demonstrating a motive for the copying of the NEC trade mark by Punch Video (S) Pte Limited – and I should stress that there is no evidence before me that would suggest that the applicant has copied the opponent’s trade mark. But, the case does show a preparedness by the Courts to look at the notoriety of an opponent’s trade mark in terms of section 44 of the Act and give force to the observations of the Full Court in C A Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539 at paragraph 51:

   Registrar of Trade Marks v Woolworths Ltd (1999) 45 IPR 411 involved an "appeal" to the Court from a decision of a delegate of the Registrar by which the delegate rejected the respondent's application for registration of a mark comprising the words "WOOLWORTHS Metro" on a background of flag like wavy lines. One of the grounds of rejection was that the mark was deceptively similar to a number of marks, including the word "Metro", some registered in respect of services, others registered in respect of goods which were closely related to the services in respect of which the respondent sought registration of its mark. The Full Court by majority (French and Tamberlin JJ; Branson J dissenting) dismissed an appeal from a decision at trial by which Wilcox J had allowed the appeal from the delegate's decision and held that deceptive similarity was not made out. An important element in the reasoning by which both the primary judge and the majority of the Full Court came to that conclusion was that the word "Woolworths" was so well known that it was the element of the mark applied for most likely to be recalled, so that the mark was not likely to deceive or cause confusion. French J, at 431, approved the approach of the trial judge, as follows:

   "In respect of the fourteenth cited mark which is an accepted application pending opposition, his Honour found that there is likely to be some similarity between the services in respect of which registration of this mark is sought and the services offered by Woolworths. However, in that respect he said ...:

   `As the name would not be displayed on goods, the aural impression may here be more important than the manner of visual presentation. But it is only possible to say the aural use of the term `Woolworths Metro' is deceptively similar to `Metro' if one ignores or discounts the word `Woolworths'. In comparing the marks, it is not legitimate to ignore a major element in one of them; and, for the reasons I have given, I do not think that word should be discounted. On the contrary, having regard to its aural prominence and familiarity to Australians, it is the element of the mark most likely to be noticed and remembered.'

   His Honour's reference to the familiarity of the name `Woolworths' in Australia was appropriate. Where an element of a trade mark has a degree of notoriety or familiarity of which judicial notice can be taken, as in the present case, it would be artificial to separate out the physical features of the mark from the viewer's perception of them. For in the end the question of resemblance is about how the mark is perceived. In the instant case the visual impact of the name `Woolworths' cannot be assessed without a recognition of its notorious familiarity to consumers."

   Woolworths was not an infringement case and, of course, the notoriety taken into account was not any notoriety attaching to marks already registered (or marks applications for which had been lodged before the Woolworths application); the notoriety attached to an element of the mark for registration of which Woolworths had applied. Nevertheless, in our view, Woolworths suggests a proposition for which the cases on which the appellants rely may be taken as authority. It is that, in assessing the nature of a consumer's imperfect recollection of a mark, the fact that the mark, or perhaps an important element of it, is notoriously so ubiquitous and of such long standing that consumers generally must be taken to be familiar with it and with its use in relation to particular goods or services is a relevant consideration. It is unnecessary to consider whether the cases are authority for precisely that proposition. All that is necessary for present purposes is to hold, as we would, that they are authority for no wider proposition in relation to the relevance, on a question of deceptive similarity in proceedings where it is alleged under s 120(1) that a registered mark has been infringed, of evidence as to the reputation attaching to the mark. A wider proposition would not, in our view, be consistent with the earlier, and binding, authority to which we have referred. It is unnecessary, in order to decide this case, to go further.

   30.   It would not be realistic for me to disregard the reputation of the INTEL trade marks which, in their field, have achieved notoriety.  But, as observed by the Registrar’s Delegate Terry Williams in Flight Centre Pty Ltd v World Flight Centre Pty Ltd [2003] ATMO 60 at paragraph 21:

   However, it may be that the more widely the opponent is known, nationwide, as FLIGHT CENTRE, plain and simple, and the more widely recognised are those words seen to be its trade mark, the less likely is it that clearly different trade marks will be seen as denoting the same trade source. Reputation in a trade mark can thus be a double-edged sword and may either reinforce or mitigate the effect of differences.

   I note that this is an issue touched on by Bennett J in Torpedoes Sportswear Pty Limited v Thorpedo Enterprises Pty Limited [2003] FCA 901. At paras 89 and 90 she observed:

   ... When comparing two words which are both well known, one as a word used in ordinary parlance and the other a word associated with a particular person, it is more difficult to establish a likelihood of mistaken impression. [Stress added]

   31.   I think that the situation before me contrasts quite clearly with the ones in the foregoing paragraph.  The sign INTEL is well-known, but it is only as a trade mark and not in ordinary parlance or language, and the other sign, INTELEC ENGINEERING, is neither well-known or associated with a particular person.  Both are words to which no dictionary meaning can be ascribed – but the former, the trade mark of the opponent, is not only very well-known but (assisted by its notoriety) is immediately apparent within the opposed trade mark.  It is at the beginning of the opposed trade mark[2] and the additional letters EC do not, in my consideration, alter or hide its significance.  The opposed trade mark will naturally be foreshortened to INTELEC by the omission of purely descriptive matter – and, indeed, the exhibits to applicant’s evidence demonstrate this as does its website at It is difficult to accept, therefore, that the additional letters and word within the opposed trade mark aid in distinguishing the applicant’s trade mark from those of the opponent – the immediate impact and impression of the opposed trade mark is that it is (bearing in mind the notoriety of the trade mark INTEL) the opponent’s trade mark with the letters EC and descriptive word ENGINEERING added.

   [2] London Lubricants (1920) Ltd's Application, (1925) 42 RPC 264 (CASTROL/TRIPCASTROID)

   32.   This does not, of itself, mean that the trade marks are deceptively similar.  The goods and services here are such that deception, as in purchasing goods, or ordering services from the applicant under the belief that the goods or services are those of the opponent is, considering the specialty and likely expense of the goods and services, unlikely: LANCER- Trade Mark Application [1987] RPC 303. However, I think that the conclusion that the use of the opposed trade mark would, at least, confuse is inescapable.

   33.   In Pioneer Hi-Bred Corn Co v Highline 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.

   34.   In Radio Corp Pty Ltd v Disney (1937) 57 CLR 448 Rich J, at 454, said of the word 'confusion':

   In matters such as this we are dealing with the vague and indefinite impressions of the great mass of the public who neither are required nor desire to refine upon distinctions of this sort. To them it is shown that the name "Walt Disney" summons up a picture of "Mickey Mouse" and the picture of Mickey Mouse reminds them of "Walt Disney". The foundation of this is authorship no doubt. But somehow or other, how, it is fruitless to inquire, they connect the appearance on an article of the name or form of "Mickey Mouse" with "Walt Disney". This being so, it is, I think, impossible for the appellant to negative all likelihood of confusion. It is no part of our duty to state in definite terms precisely how the public will be misled or what kind of connection they will impute. Confusion involves indefiniteness of ideas.

   35.   In Woolworths, above, at paragraph 47, French and Tamberlin JJ, speaking of the operation of section 44, said:

   The policy of the 1995 Act can be said to some extent to have shifted the balance of the objectives of trade mark law more towards the identification and protection of commercial products and services than the protection of consumers, although the latter remains an objective. In respect of deceptive trade marks the interests of consumers are also protected by comprehensive Federal and State laws relating to conduct which is misleading or deceptive or likely to mislead or deceive. The trade mark law concept of confusion in the sense of mere wonderment as to common origin or connection has little part to play in the consumer protection statutes. That, no doubt, is because "confusion" used in that sense, does not of itself lead into error or affect choices at the point of sale. It is perhaps best described in trade mark law as effecting a prophylactic support for commercial distinctiveness.

   36.   A similar expression was used by the Full Bench of the High Court in Campomar Sociedad, Limitada v Nike International Ltd (2000) 46 IPR 481 where it was said at pages 505-506:

   Section 28(a) barred the registration of a mark the use of which would have been likely to deceive or cause confusion. The issue was to be determined  at the date of the application for registration and with respect to all of the goods for which registration was desired, not only those for which there was proposed an immediate use. A state of confusion falling short of an actual probability of deception leading to a passing off would not negative the operation of s 28 and would not lift the bar to registration.

   By this prophylactic operation of s 28, an applicant might be denied registration for certain goods even though the subsequent use of the mark on those goods would not mislead or deceive or be likely to have that result, and would not found an action against the applicant for contravention of s 52 or passing off. Thus, there could be a field of activity in which, while the applicant was denied registration of the mark and the rights against other traders which this would have given, use of the mark by the applicant could not be enjoined by those traders.

   37. This appears to be somewhat akin to ‘dilution’ or concepts more familiar to subsection 120(3) of the Act. Here, I only find that the opponent has established that its trade mark is notorious and the applied-for trade mark is deceptively similar to the opponent’s trade mark and that the use of the opposed trade mark is likely to confuse if used for the full range of goods and services specified on the opposed application.

   38. The opponent has established its opposition in terms of section 44 of the Act and, for similar reasons establishes its opposition in terms of section 60.

   39. It is hence unnecessary for me to consider the ground under section 43.

   Decision

   40. Section 55 of the Act provides:

   55. Unless the proceedings are discontinued or dismissed, 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.

   41.   I refuse to register application 940831.

   Costs

   42.   I order costs, as per the schedule to the regulations, against the applicant.

   Ian Thompson

   Hearing Officer

   Trade Marks Hearings

   8 May 2005