Julie Mitsios v Paul Cutter as Trustee for the Paul Cutter Family Trust
[2022] ATMO 118
•18 July 2022
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Julie Mitsios to registration of trade mark application number 2030088 (classes 9 & 16) – EARTH TO TABLE BY TERESA CUTTER – in the name of Paul Cutter as trustee for the Paul Cutter Family Trust
Delegate: | Tracey Berger |
Representation: | Opponent: GO Trademarks Applicant: Sherrie Heather Trade Marks Attorney Services |
Decision: | 2022 ATMO 118 Trade Marks Act 1995 (Cth) – opposition under section 52 – sections 42(b), 43, 58, 59, 60 and 62A pursued – no grounds established – trade mark to proceed to registration |
Background
This is a decision on the opposition by Julie Mitsios (‘Opponent’) to trade mark number 2030088 (‘Application’) EARTH TO TABLE BY TERESA CUTTER (‘Trade Mark’) filed on 14 August 2019 (‘Relevant Date’) by Paul Cutter as trustee for the Paul Cutter Family Trust (‘Applicant’) for the following goods:
Class 9: Electronic publications (downloadable); Electronic publications including those sold and distributed online; Television films; Television films prepared for exhibition; Television films prepared for video use; Televisions; Films bearing recorded educational material; Films for reproducing vision; Motion picture films (recorded); Motion picture films for television use; Photographic films (exposed); Photographic films for exhibitions; Printed publications in electronically readable form; Printed publications in machine readable form; Printed publications in optically recorded form; Newspapers downloaded via the internet; Magazines downloaded via the internet
Class 16: Printed matter; Books; Bags for packaging food for cooking; Wrapping materials not of metal for use in cooking; Printed publications; Magazines (periodicals); Magazines (periodicals) for women; Newspapers
(‘Goods’)
The Application was examined, accepted and advertised for opposition on 17 February 2021. The Opponent filed a Notice of Intention to Oppose on 19 April 2021 and a Statement of Grounds and Particulars (‘SGP’) on 19 May 2021. The Applicant filed a Notice of Intention to Defend the Application from opposition on 5 July 2021.
The parties had the opportunity to file evidence in accordance with reg 5.14.[1] The Opponent filed Evidence in Support (‘EIS’) on 18 October 2021, followed by the Applicant’s Evidence in Answer (‘EIA’) lodged on 20 January 2022. The Opponent did not file Evidence in Reply.
[1] Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) or regulation of the Trade Marks Regulations 1995 (Cth) (‘Regulations’).
Following the conclusion of the evidence phase, the parties were given the opportunity to request a hearing. The Applicant requested a decision without a hearing and paid the requisite fee. The Opponent did not ask to be heard. This matter was allocated to me to determine in my capacity as a delegate of the Registrar of Trade Marks based on the material filed during the proceedings as outlined above.
Grounds and Onus
The SGP nominates grounds of opposition under ss 42(b), 43, 58, 59, 60 and 62A.
The Opponent bears the burden of establishing a ground of opposition on the balance of probabilities.[2] The rights of the parties are to be assessed at the Relevant Date.
Evidence
[2] Pfizer Products Inc v Karam [2006] FCA 1663, [22] (Gyles J); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
EIS
The EIS consists of a declaration of Julie Mitsios made on 18 October 2021 with Exhibits JM1 to JM13.
Ms Mitsios attests that she adopted and first used the brand EARTH TO TABLE (‘Opponent’s Mark’) in 2012 in relation to a café she owned in Bondi, Sydney that encouraged a raw food diet (‘Opponent’s Café’). This café was promoted on social media namely on the Opponent’s Facebook page created on 5 July 2012 and Instagram account from 2013. The Opponent also posted information and recipes on a raw food diet on these sites. Examples of these posts from 5 November 2018 to 20 April 2019 are provided. In April 2013, the Opponent ran a one-day education course at The Intuitive Well, Bondi Junction teaching recipes utilising raw foods.
The Opponent operates a website at (‘Opponent’s Website’) which was initially used to promote the Opponent’s Café[3] but continues to be used to promote healthy eating with a focus on a raw food diet. Blog extracts of the Opponent’s Website from 2015 and 2016 are provided.
[3] The Opponent’s Café was closed down in August 2018.
In 2017, Ms Mitsios decided to collate her raw food recipes into a cookbook which she promoted on her social media accounts. Ms Mitsios declares that this cookbook was published under the name EAT MORE RAW rather than EARTH TO TABLE due to the risk of confusion with the Applicant. The Opponent annexes a post from Instagram on 22 October 2020 where a consumer purchased the Applicant’s cookbook when she intended to purchase the Opponent’s cookbook.
In addition to alleging that she has a reputation in the mark EARTH TO TABLE as a result of use of this mark in relation to the Opponent’s Café and to promote a raw diet, the Opponent contends that the Applicant does not use or intend to use the Trade Mark but rather the mark is used by Teresa Cutter and/or The Healthy Chef Pty Ltd. In support of this contention, Ms Mitsios annexes extracts from the website extracts from third party websites such as Amazon, Apple Books and Booktopia offering for sale a cookbook under the Trade Mark and company extracts for the Applicant and The Healthy Chef Pty Ltd.
EIA
The EIA consists of:
Declaration of Teresa Cutter made on 20 January 2022 with Annexures 1 and 2; and
Declaration of Paul Cutter made on 20 January 2022 with Annexures 1 to 10.
Mr Cutter attests that his wife, Teresa Cutter, is a qualified chef with over 30 years’ experience in the food industry and one of Australia’s leading authors and advocates on healthy cooking. Together, they operate a business under the company The Healthy Chef Pty Ltd. Their financial affairs are organised under The Paul Cutter Family Trust, of which he and his wife are the beneficiaries. Mrs Cutter confirms this same information in her declaration and that she has consented to use of her name by the Applicant in 2014 and in the Trade Mark in February 2021.
The Applicant adopted the Trade Mark in 2018 for a new cookbook (‘Applicant’s Cookbook’) to reflect peoples’ interest in shortening the distance between where food was grown and where it is consumed. Other names that were considered include ‘Farm to Plate’ and ‘Farm to Table’ before the Applicant settled on EARTH TO TABLE as the preferred option. A draft of the Applicant’s Cookbook was promoted at the Frankfurt Book Fair in 2018.
In 2019, the Applicant undertook various searches including a trade mark search which did not reveal any relevant entries and a Google search which revealed a Sydney restaurant that had closed almost a year earlier. A final draft of the Applicant’s Cookbook was then sent to the publishers.
In July/August 2019, prior to sending the Applicant’s Cookbook for printing, the Applicant undertook a final Google search and decided to amend the name of the Applicant’s Cookbook to the Trade Mark after becoming aware of a German 2009 publication called Earth to Table: Seasonal Recipes from an Organic Farm.
Once the Applicant’s Cookbook was published, it won the Gourmand World Book Awards 2019 - Best Health & Nutrition Book and was the Gold Winner of the Independent Publisher Book Awards in 2020.
The Applicant’s Cookbook has been available for sale on its website at since at least 8 November 2019.
Mr Cutter avers that the Applicant is now aware of a number of other publications using titles containing the phrase EARTH TO TABLE and annexes a list of such publications.
Discussion
Section 58
Section 58 provides that the registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark.
The owner of a trade mark is the person who first uses it in Australia, or first files a trade mark application in Australia, whichever is the earlier. The Opponent must establish the following three factors to succeed on this ground:
the trade mark relied upon by the Opponent is at least substantially identical to the Trade Mark;[4]
the Goods are the ‘same kind of thing’ as the goods or services for which the Opponent has used the mark it relies upon;[5] and
a person other than the Applicant has the earlier claim to ownership based on use in Australia of the trade mark relied upon by the Opponent before either (a) the filing of the Application or (b) any actual use of the Trade Mark in Australia by the Applicant.
[4] Carnival Cruise Lines Inc. v Sitmar Cruises Limited [1994] FCA 936, [62] (Gummow J).
[5] Re Hicks’s Trade Mark[1897] VicLawRp 118; (1897) 22 VLR 636, 640 (Holroyd J).
The Opponent has particularised this ground in the SGP as follows:
1. Since 2012, before the filing date of Application No. 2030088 (‘the Opposed Mark’) and before any use by the Applicant, the Opponent first used a substantially identical trade mark – namely, the words EARTH TO TABLE, this being the essential feature of the Opposed Mark – in relation to goods that are the same as those specified in the Opposed Mark or are the same kind of thing as the goods specified in the Opposed Mark. As a consequence, the Opponent is the owner of the trade mark; OR, IN THE ALTERNATIVE:
2. The applicant is not the owner of the Opposed Mark. Rather, the first user and hence true owner of the mark EARTH TO TABLE BY TERESA CUTTER is Teresa Cutter and/or The Healthy Chef Pty Ltd (ACN: 119 224 654).
The assessment of substantial identity was identified by Windeyer J in Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited as follows:
In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[6]
[6] [1963] HCA 66; (1963) 109 CLR 407, 415.
The test for substantial identity requires that the trade marks are considered side by side while having regard to the essential features of the marks. In Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd, the court held that a comparison of marks is to be carried out cognisant of the essential elements of the trade marks, noting that essential elements are unlikely to be found in mere descriptive elements.[7]
[7] [2017] FCAFC 83; 251 FCR 379, [52] (Greenwood, Jagot and Beach JJ).
The comparison in the present case is between:
EARTH TO TABLE EARTH TO TABLE BY TERESA CUTTER
It is clear on a side by side comparison that the Opponent’s Mark is wholly contained in the Trade Mark. The mere fact that one trade mark is wholly encompassed within another does not necessarily render them substantially identical.[8] The marks must be considered as a whole having regard to their essential elements, being mindful that these are unlikely to be found in mere descriptive elements.
[8] Angoves Pty Ltd v Johnson (1982) 66 FLR 216, 230 (Franki, Deane and Fitzgerald JJ).
The Trade Mark is twice as long as the Opponent’s Mark containing 6 words as opposed to 3. Whilst I consider “EARTH TO TABLE” to be an essential element of both the Opponent’s Mark and the Trade Mark, the element “TERESA CUTTER” is also an essential element of the Trade Mark which is at least as memorable, if not more so than EARTH TO TABLE. In relation to food, I believe that terms such as ‘farm to table’, ‘paddock to plate’ and ‘earth to table’, have a meaning that is well understood by consumers as indicating that the produce has come straight from the farm/paddock/earth to the consumer’s table or plate.
While I would have little hesitation in finding that the respective marks are deceptively similar, I am not satisfied that they are substantially identical.
I turn now to the Opponent’s alternative claim that the Applicant is not the owner of the Trade Mark because the first user and true owner is either Teresa Cutter and/or The Healthy Choice Pty Ltd.
Pursuant to s 7(3), authorised use of a trade mark is taken to be use of the trade mark by the trade mark owner. Authorised use is use of the trade mark under the control of the trade mark owner.[9] Accordingly, to succeed on the alternative claim to this ground, the Opponent needs to establish that Teresa Cutter or The Healthy Choice Pty Ltd used the Trade Mark in Australia before the Relevant Date without the authorisation of the Applicant.
[9] Act s 8(1).
In the EIA, both Paul and Teresa Cutter attests that they are the ultimate beneficiaries of the Paul Cutter Family Trust and as shown in the EIS, Mr and Mrs Cutter are the sole directors of The Healthy Choice Pty Ltd. Mr Cutter declares in the EIA that the Trade Mark was chosen by Mr and Mrs Cutter. The Applicant’s Cookbook was published under the Trade Mark in November 2019, after the Relevant Date. There is no evidence that Mrs Cutter or that The Healthy Choice Pty Ltd used the Trade Mark in the course of trade prior to the Relevant Date or in the event that such use did occur, that the use was not authorised by the Applicant.
Accordingly, the s 58 ground is not established.
Section 59
Section 59 relevantly provides:
59 Applicant not intending to use trade mark
The registration of a trade mark may be opposed on the ground that the applicant does not intend:
(a) to use, or authorise the use of, the trade mark in Australia; or
(b) 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 specified in the application.
Applying for registration of a trade mark carries a presumption that an applicant intends to use the mark.[10] The onus is on an opponent to displace this presumption by making out a prima facie case that the applicant lacked the requisite intention to use the Trade Mark in Australia at the filing date.[11] If an opponent makes out a prima facie case, the evidentiary onus shifts to the applicant to show its intention to use the trade mark at the filing date.
[10] Aston v Harlee Manufacturing Co [1960] HCA 47, [21] (Fullagar J).
[11] Amalgamated Television Services Pty Ltd v Clissold (2000) 52 IPR 207 (Hearing Officer I. Forno).
The SGP states:
The Applicant had no intention to use and is in fact not using EARTH TO TABLE BY TERESA CUTTER as a trade mark. Rather, the user of EARTH TO TABLE BY TERESA CUTTER is Teresa Cutter and/or The Healthy Chef Pty Ltd.
Often trade mark owners do not intend to use a trade mark themselves but rather will authorise (by way of a licence) another party to use the trade mark.
The Opponent’s claim in the SGP amounts to a bald assertion that does not establish a prima facie case that at the time of filing the Application, the Applicant did not intend to use or authorise use of the Trade Mark in Australia for the Goods. Hence, the s 59 ground is not successful.
Section 60
Section 60 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.
Note: For priority date see section 12.
To establish this ground, the Opponent must establish a reputation in a trade mark existing in Australia at the Relevant Date. If reputation is established, the Opponent must then prove that because of the reputation in the mark relied on by the Opponent, use of the Trade Mark is likely to deceive or cause confusion.
Reputation cannot be assumed; it must be established as a matter of fact by the Opponent.[12] The reputation in the other trade mark must be amongst a ‘significant’ or ‘substantial’ number of Australian consumers[13] but this is tempered by the nature of the relevant market.
[12] ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159, [77] (Lockhart J).
[13] See Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170; ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159, [118].
The reputation of a trade mark may be demonstrated in a variety of ways. For example, it may be established by demonstrating a significant number of people are exposed to a trade mark,[14] or inferred from a high volume of sales,[15] advertising expenditure or other promotion.[16]
[14] Le Cordon Bleu BV v Cordon Bleu International Ltee [2000] FCA 1587, [91] (Heerey J).
[15] McCormick & Co Inc v McCormick [2000] FCA 1335, [86] (Kenny J).
[16] Ibid.
In Rodney Jane Racing Pty Ltd v Monster Energy Company O’Bryan J observed that:
The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally ...[17]
[17] [2019] FCA 923, [83].
In the SGP, the Opponent specifies this ground as follows:
The Opponent has been using the trade mark EARTH TO TABLE extensively and continuously in Australia since 2012, before the priority date of the Applicant's trade mark, in relation to restaurant services as well as in relation to the provision of recipes and training courses. As a result of the extensive use, she has acquired a reputation in the EARTH TO TABLE trade mark and, because of this reputation, the Applicant's use of the Opposed trade mark is likely to deceive or cause confusion and has in fact caused confusion.
The Opponent’s evidence is lacking in the necessary detail to support the Opponent’s claim to a reputation in the Opponent’s Mark at the Relevant Date. No details have been provided of the revenue generated by the Opponent’s Café, the one day education course or any other means under the Opponent’s Mark. The Opponent’s Café had been closed for a year prior to the Relevant Date and the Opponent had run a one day education course in 2013 for an unspecified number of people. There does not appear to have been any advertising of the Opponent’s activities under the Opponent’s Mark other than on the Opponent’s Website and social media accounts. In October 2021, over 2 years after the Relevant Date, the Opponent had about 20,000 followers on Facebook and 40,000 on Instagram which does not indicate that a significant proportion of the relevant public were exposed to the Opponent’s Mark. Whilst there has been one consumer who purchased the Applicant’s Cookbook instead of the Opponent’s cookbook EAT MORE RAW, this may have been an isolated instance and, in any event, occurred over a year after the Relevant Date.
I am not satisfied that the Opponent had a reputation in the Opponent’s Mark at the Relevant Date such that use of the Trade Mark is likely to deceive or cause confusion. The s 60 ground is not successful.
Section 42(b)
Section 42(b) provides that an application for the registration of a trade mark must be rejected if its use would be contrary to law. The Opponent bears the onus of establishing that use of the Trade Mark would be, rather than could be, contrary to law.[18]
[18] Advantage Rent-A-Car Inc v Advantage Car Rental Pty Ltd (2001) 52 IPR 24, 32 [28] (Madgwick J).
In support of this ground, in the SGP, the Opponent states that:
As a result of the Opponent's extensive use of EARTH TO TABLE, the Applicant's use of EARTH TO TABLE BY TERESA CUTTER would be misleading or deceptive or is likely to mislead or deceive or would be a false or misleading representation that the Applicant's goods are approved, provided by, endorsed by or associated with the Opponent. As the Applicant is not affiliated with the Opponent, the Applicant's use is contrary to law under the Australian Consumer Law. For the above reasons, the Applicant's use of the trade mark would also amount to passing off and contrary to law.
The requirement to mislead or deceive the relevant consumer is one of the key differences between s 18 of the ACL and s 60. Unlike s 60, s 18 of the ACL cannot be established by demonstrating use of the Trade Mark would merely give consumers cause to wonder whether the Applicant’s business or goods are connected to the Opponent. Several cases confirm that more is required to establish a likelihood of misleading or deceptive conduct under the ACL than is the case with trade marks likely to deceive or cause confusion under s 60.[19]
[19] For example, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 209-10 (Mason J).
Conduct will be misleading or deceptive only if it leads or is capable of leading someone into error[20] which must be determined objectively in the context of all the surrounding circumstances.[21] Conduct may be misleading or deceptive regardless of the intention of the alleged wrongdoer[22] but where an intention to deceive is established, a court may more readily infer that the intention has been realised.[23]
[20] Ibid, 198–199 (Gibbs CJ).
[21] Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, 199 and 202 (Deane and Fitzgerald JJ).
[22] Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82, 88 (Bowen CJ, Lockhart and Fitzgerald JJ).
[23] Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12, [33] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Passing off involves similar considerations to misleading and deceptive conduct in that there must be:
reputation in the relevant mark or indicia;
misrepresentation leading to deception; and
damage to goodwill, or the likelihood thereof.
For the same reasons given under s 60, I am not satisfied that consumers would be misled or deceived by use of the Trade Mark. The s 42(b) ground is not established.
Section 43
This section requires the Opponent to demonstrate that there is a connotation in the Trade Mark (or a part of it) and that because of the connotation, use of the Trade Mark would be likely to deceive or cause confusion.
The ‘connotation’ must be inherent in the trade mark itself. The connotation must arise from the Trade Mark[24] and not from any comparison with another trade mark.[25] As Spender J noted in Winton Shire Council v Lomas:
Section 43 is directed to the mark itself. It is not concerned with any deception or confusion caused by the reputation in Australia of some other trade mark. That aspect of the matter is dealt with under s 60.[26]
[24] Pfizer Products Inc v Karam [2006] FCA 1663, [53] (Gyles J).
[25] Ibid; Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174, [140] (KatzmannJ).
[26] [2002] FCA 288, [19].
The Opponent particularises this ground in the SGP as follows:
Due to the Opponent's strong reputation in the trade mark EARTH TO TABLE in relation to restaurant services as well as in relation to the provision of recipes and training courses, the connotation of the EARTH TO TABLE BY TERESA CUTTER trade mark is that the goods offered under it have some relationship, sponsorship, approval or connection with the Opponent's goods and services. Use of EARTH TO TABLE BY TERESA CUTTER by the Applicant would therefore lead to deception or confusion as there is no such connection with the Opponent or the Opponent's goods; OR, IN THE ALTERNATIVE:
The presence of the words ‘By Teresa Cutter’ in Application No. 2030088 falsely suggest that the specified goods are being offered by or under the direction or control of Teresa Cutter when the goods are in fact being offered by and under the direction and control of the Applicant for Registration.
The first step in establishing this ground of opposition requires the Opponent to identify some connotation inherent in the Trade Mark. The Opponent’s claim to a reputation in the Opponent’s Mark is not relevant to whether a connotation exists within the Trade Mark. In relation to the alternative claim, Mrs Cutter has consented to the use of her name by the Applicant and is involved in use of the Trade Mark. Accordingly, the inclusion of TERESA CUTTER in the Trade Mark is not likely to deceive or cause confusion.
The s 43 ground of opposition is not established.
Section 62A
Section 62A provides that the registration of a trade mark may be opposed on the ground that the application was made in bad faith.
The decided cases have established that this is a two-step test with a subjective and an objective element. The subjective element requires findings as to what the Applicant knew at the filing date. The objective element then asks: armed with that knowledge, would a person adopting proper standards of commercial behaviour consider the act of filing the trade mark to be in bad faith?
The Opponent alleges in its SGP that the Application was made in bad faith because the Applicant was aware of the Opponent’s reputation in the Opponent’s Mark prior to filing the Application. I have already found that the Opponent did not have a reputation in the mark EARTH TO TABLE at the Relevant Date such that use of the Trade Mark is likely to deceive or cause confusion.
Bad faith is a serious allegation that “impugns the character of an individual or collective character of a business” requires correspondingly cogent evidence, the standard of proof is the balance of probabilities, rather than that of beyond reasonable doubt.[27]
[27] Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] 201 FCR 565, 593-4 [145] (Dodds-Streeton J).
The Applicant took steps to try to determine whether there were any obstacles to its use of the mark EARTH TO TABLE by undertaking online searches on two occasions in 2019. A trade mark search did not reveal any prior Australian applications or registrations for EARTH TO TABLE. Mr Cutter confirms that a Google search revealed a restaurant in Sydney once called EARTH TO TABLE but it had been closed for over a year. I assume that this was the Opponent’s Café which had closed in about August 2018. When a subsequent Google search in 2019 revealed a German publication called Earth to Table: Seasonal Recipes by Jeff Crump and Bettina Schormann, the Applicant decided to amend the name of its cookbook to EARTH TO TABLE BY TERESA CUTTER. Having conducted these searches, I consider that the filing of the Application is commercially acceptable behaviour and that there was not bad faith on the part of the Applicant.
The s 62A ground of opposition fails.
Decision
Section 55 relevantly provides:
55 Decision
(1) 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.
The Opponent has not established a ground of opposition. Accordingly, trade mark application number 2030088 may proceed to registration one month from the date of this decision.
If the Registrar is served with a notice of appeal before that time, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the applications should otherwise be in accordance with the Court’s order or direction.
The Opponent has requested an award of costs. Costs generally follow the event and hence I award costs against the Opponent under s221 in the applicable amounts set out in Schedule 8 of the Regulations.
Tracey Berger
Hearing Officer
Oppositions and Hearings
Trade Marks and Designs
18 July 2022
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