Julius Samann Limited v The Royal Horticultural Society
[2025] ATMO 37
•24 February 2025
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Julius Samann Ltd to extension of protection under regulation 17A.33 of the Trade Marks Regulations 1995 of trade mark number 2338526 (International Registration number 1716696) (classes 3, 4, 6, 8, 9, 11, 16, 18, 19, 20, 21, 24, 25, 27, 28, 29, 30 and 31) – Fruit Tree with Roots device - in the name of The Royal Horticultural Society
Delegate:
Anne Makrigiorgos
Representation:
Opponent: Susan Gatford of counsel instructed by Macpherson Kelley
Holder: Samuel J Hallahan of counsel instructed by Davies Collison Cave Pty Ltd
Decision:
2025 ATMO 37
Trade Marks Regulations 1995 (Cth) – opposition to extension of protection under reg 17A.33 – grounds of opposition pressed under reg 4.15A and ss 42(b), 44 and 60 of the Trade Marks Act 1995 (Cth) – no ground established – protection granted.
Background
1. This is a decision in respect of an opposition by Julius Samann Ltd (‘Opponent’) under reg 17A.33 of the Trade Marks Regulations 1995 (Cth)[1] to the extension of protection of the following International Registration Designating Australia (‘IRDA’):
International Registration number: 1716696
IRDA number: 2338526 (‘Application’)
Trade mark: (‘Trade Mark’)
Holder: The Royal Horticultural Society (‘Holder’)
Filing Date: 28 September 2022 (‘Filing Date’)
Convention Priority Date: 28 March 2022[2] (‘Priority Date’)
Specification: See Annexure A (‘Holder’s Goods’)
[1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth) and each reference to a regulation is a reference to a regulation in the Trade Marks Regulations 1995 (Cth).
[2] Convention priority claimed from United Kingdom trade mark number UK00003770924.
2. The Trade Mark was examined and advertised as accepted for possible extension of protection on 21 March 2023.
3. On 19 May 2023, the Opponent filed a Notice of Intention to Oppose the Trade Mark. On 16 June 2023, the Opponent filed its Statement of Grounds and Particulars (‘SGP’). The Holder filed a Notice of Intention to Defend the opposition on 4 August 2023.
4. The Opponent filed Evidence in Support (‘EIS’) on 13 November 2023. The Holder filed Evidence in Answer (‘EIA’) on 14 February 2024. The Opponent filed Evidence in Reply (‘EIR’) on 22 April 2024.
5. The parties were given the opportunity to either request an oral hearing or a hearing by way of written submissions. Both parties requested an oral hearing by video conference. The Opponent filed written submissions on 23 January 2025 and the Holder on 31 January 2025. At the hearing Susan Gatford of counsel appeared on behalf of the Opponent and Samuel J Hallahan of counsel instructed by Carly Mansell of Davies Collison Cave Pty Ltd (observed by Benita Lau of Davies Collison Cave Pty Ltd) appeared on the Holder’s behalf. I have decided this matter based on the particulars set out in the SGP, the evidence of the parties and the written and oral submissions of the parties.
Grounds and Onus
6. Regulation 17A.34 provides that an extension of protection may be opposed on any of the grounds on which an IRDA may be rejected and on the grounds set out in ss 58 to 61 and 62A.
7. The SGP nominates grounds of opposition under ss 42(b), 44/reg/4.15A and 60. However the Opponent only presses these grounds for the following subset of the Holder’s Goods (‘Subset Goods’):
Class 3 – perfumery; essential oils; air fragrancing preparations; fumigation preparations [perfumes]; reed diffusers; scented sachets; scented room sprays; pot pourri oil; perfume
Class 4 – scented candles.
8. The Opponent carries the burden of establishing one or more of the grounds of opposition[3] on the balance of probabilities.[4] The dates at which the rights of the parties are to be determined is 28 March 2022 being the Priority Date for the purposes of ss 44 and 60 and the Filing Date of 28 September 2022 for s 42(b).[5] Any reference to the ‘Relevant Date’ is a reference to the date applicable to the ground under discussion.
[3] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).
[4] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
[5] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J) (‘Southern Cross’).
Evidence
9. The parties filed the following evidence in this matter:
Declarant and Position
Date
Annexures or Exhibits
EIS
Sarah E Garrett, legal manager of CAR-FRESHNER Corporation (‘CFC’), the licensee of the Opponent in Australia (‘Garrett’)
10 November 2023
SG-1 to SG-27
EIA
Rebecca Scott, head of legal of the Holder (‘Scott’)
13 February 2024
1 to 4 including Confidential 2
Benita Lau Jin Ping, employee of Davies Collison Cave Asia Pte Ltd, an affiliated firm of Davies Collison Cave Pty Ltd, attorneys for the Holder (‘Ping’)
13 February 2024
1 to 3
EIR
Leah Waite Holland, senior legal manager at CFC (‘Holland’)
19 April 2024
LW-1 to LW-3
Summary of EIS
10. Garrett is 443 pages and therefore, only a brief summary is set out below.
11. Garrett attests that the Opponent is the owner of the trade marks associated with the LITTLE TREES brand air fresheners in Australia, and licenses these trade marks to CFC in respect of air fresheners. A copy of the current and three previous licence agreements are exhibited. I note that the definition of IP in the agreements states ‘The Tree design, CAR-FRESHENER, LITTLE TREES … and trademarks, copyrights and designs associated therewith’.
12. In 1952, Mr Julius Samann invented the hanging air freshener and made it in the shape of a stylised tree (‘Tree Design’). Mr Samann has since passed away and all intellectual property associated with the LITTLE TREES air fresheners including the Tree Design is held globally by the Opponent.
13. Since 1952, CFC and its predecessors have sold a wide range of products featuring the Tree Design including hanging air fresheners, vent air fresheners, can air fresheners and sprays for use in vehicles, homes, offices, gyms and other enclosed spaces (‘Tree Design Goods’).
14. The Tree Design Goods have been sold in Australia since at least December 1962. The Tree Design Goods are sold through thousands of outlets nationally including variety stores, petrol stations, retailers of automotive products and major supermarket chains. These outlets include Woolworths, Coles, IGA, Big W, Supercheap Auto Pro, Repco, Coles Express, Reject Shop, Caltex, United and Burson amongst others.
15. CFC has two Australian distributors:
·DuBois Chemicals Australia Pty Ltd (trading as ProWash) (‘DuBois’) who has been a distributor since 2006 and is responsible for distribution of the Tree Design Goods to the car wash and car detailing markets; and
·TISCO Australia Pty Ltd (‘Tisco’) who has been a distributor since 1962 and handles all markets not covered by Dubois including home and office air care markets, supermarkets, petrol stations and auto shops.
16. There has been extensive advertising and promotion of the Tree Design Goods including on invoices, catalogues, promotional materials, magazines, brochures, point of sale advertising and third party catalogues including Tisco, DuBois, Repco and Supercheap Auto catalogues, social media, at trade shows and industry events, and third party advertisements as early as 1996 such as Levi’s, Honda, Samsung, Subaru, Toyota, Mastercard, National Australia Bank, Kia, Volkswagen, and carsales.com.au.
17. In addition, the Tree Design Goods are advertised online on third party websites of supermarkets, online retailers such as eBay and amazon.com.au, variety stores ( auto shops ( CFC’s website at and Dubois’s website at Details of visits to and audience overview of the Opponent’s website are provided.
18. The Tree Design Goods have also featured by way of product placements in movies from 1977 to 2019 such as Saturday Night Fever, Liar Liar, Ocean’s Eleven, Runaway Bride, Bourne Ultimatum, Terminator Salvation and Back to School, and television shows from 2005 to 2020 including The Office, Law & Order SVU, Gilmore Girls, Amazing Race, CSI New York, NCIS, Orange is the New Black, The Big Bang Theory, Modern Family and Married at First Sight Australia.
19. The following are examples of the packaging and use of the Tree Design on some Tree Design Goods:
together with an example of use of the Tree Design car air freshener without packaging:
and an example of the Tree Design car air freshener in use:
.
20. A table of the Opponent’s registered Australian trade marks for a Tree Design (together ‘Opponent’s Marks’) appears below:
Number
Mark
Goods
Priority Date
197704
(‘704 Mark’)
5: Deodorants
6 October 1965
949977
(IR 798981)[6]
(‘977 Mark’)
5: Air freshening preparation
18 September 2022
1249545
(IR 612525)
5: Air freshening preparations
22 May 2008
1656741
5: Air fragrancing preparation
6 November 2014
[6] This registration is a shape mark.
Summary of EIA
Scott
21. Scott describes the Holder as a charitable organisation dedicated to promoting horticulture and gardening which was established in the United Kingdom in 1804. The Holder has since expanded its licensing programme to include various territories worldwide including in Australia since at least 2000.
22. Scott claims that the Holder has used its tree device (and similar earlier evolutions of a tree device) in its branding to symbolise the significance of horticulture in relation to its charitable activities and the supply of goods and services under an international licensing programme which include, inter alia, cosmetics, perfumery, scented products, candles and diffusers, and the retail, marketing and provision of information in relation to such products.
23. Scott provides the following timeline of the Holder’s various tree devices used since 1928:
1st iteration mark
2nd iteration mark
3rd iteration mark (Trade Mark)
1928 to early 2000s
Early 2000s to present
2022 to present
24. Scott claims the Holder first used and/or licensed the use of trade marks containing the 2nd iteration mark to traders in Australia in around 2000 and subsequently, used and/or authorised its licensees to use the Trade Mark and the trade mark (‘RHS device’) (collectively ‘Used Marks’) in Australia. From 2000 to date, Scott claims the Holder has had at least 11 licensees with products available in Australia including in Woolworths.
25. Mr Scott attests that he is not aware of any instances of confusion arising in relation to the use of the Used Marks.
Ping
26. Ping provides details of Google searches conducted in 2024 with an Australian restriction which disclosed various traders using branding that features tree devices in connection with the sale and marketing of scented products in Australia. Examples are exhibited together with details of any corresponding trade mark registrations in Australia. I note that those that feature only a single tree with no other wording are as follows:
Registration number
Mark
Classes
In use
1499039
3, 4
Candles and soaps
1042050
3, 25, 42
Skin care products
1598475
3, 5
Tea tree oil
2259885
3
Essentials oils
1698230
3
Skin care products
27. Ping also provides details of twenty eight Australian registered trade marks from IP Australia's database on 7 February 2024 containing a tree device in relation to scented products in classes 3 and 4 and retail services for such goods in class 35. I note that eighteen of these are for a tree device solus.
Summary of EIR
28. Holland states that the Opponent is only concerned with the expansion of the Holder’s rights into a single tree device without the inclusion of the letters RHS on goods and services that overlap with the Opponent’s trade mark registrations.
29. Holland states that the Opponent makes no claim for possessing a monopoly right over trees or logos containing trees.
Discussion and Reasons
Section 44
30. Section 44 relevantly provides:
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.
The SGP nominates the Opponent’s Marks[7] as the basis for this ground of opposition. However, in the Opponent’s oral submissions, the Opponent submitted that it no longer relies on the 704 or 977 Marks.[8]
[7] Defined at [20] of this decision.
[8] Future references in this decision to ‘Opponent’s Marks exclude the 704 and 977 Marks.
As a starting point, to successfully oppose the Application pursuant to s 44, the Opponent must establish that:
- at least one of the Opponent’s Marks has a priority date which is earlier than the Relevant Date and is held in a name other than that of the Holder (‘the first requirement’);
- the Trade Mark is substantially identical with or deceptively similar to at least one of the Opponent’s Marks (‘the second requirement’); and
- the Subset Goods are similar to and/or closely related to the air freshening and air fragrancing preparations (‘Registered Goods’) of at least one of the Opponent’s Marks (‘the third requirement’).
I am satisfied that the priority dates of the Opponent’s Marks are all earlier than the Relevant Date and that the Opponent’s Marks are all in a name other than the Holder. Therefore, the first requirement is satisfied.
The next consideration is whether I am satisfied that the Trade Mark is substantially identical with or deceptively similar to at least one of the Opponent’s Marks.
The Opponent’s submissions do not contend that the Trade Mark and the Opponent’s Marks are substantially identical. For completeness, I do not find the Trade Mark to be substantially identical to the Opponent’s Marks. On a side by side comparison of the respective marks, there are obvious differences which mean that a total impression of dissimilarity emerges from this comparison.
Section 10 provides a definition of deceptively similar being that ‘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’.
Justice Windeyer outlined the following approach for the assessment of deceptive similarity in The Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd (‘Shell’):
On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It 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 impressions that such persons would get from the defendant's [mark].[9]
[9] The Shell Co. of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407, [13] (‘Shell’).
The High Court in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd[10] conveniently stated the relevant principles, which was summarised in The Agency Group Limited v H.A.S. Real Estate Pty Ltd[11] as follows:
[10] [2023] HCA 8 (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).
[11] [2023] FCA 482, [55] (Jackman J).
- the resemblance between the two marks must be the cause of the likely deception or confusion;[12]
[12] Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd [2022] FCAFC 157, [69] (Yates, Abraham and Rofe JJ).
·in the trade mark comparison, the marks must be judged as a whole taking into account both their look and their sound;[13]
[13] Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536, 538 (Dixon, Williams and Kitto JJ).
·the marks should not be compared side by side;[14]
[14] Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641, 658 (Dixon and McTiernan JJ) (‘Australian Woollen Mills’).
- 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 (or services), then similarities both of sound and of meaning may play an important part;[15]
[15] Ibid.
·the focus is upon the effect or impression produced on the mind of potential customers of the goods (or services) in relation to which the two marks are used and in the case of the registered mark, allowing for ‘imperfect recollection’;[16]
[16] Ibid.
·the notional buyer is a person with no knowledge about any actual use of the registered mark, the actual business of the owner of the registered mark, the goods the owner produces, any acquired distinctiveness from the use of the marks prior to filing, or any reputation associated with the registered mark;[17]
[17] C A Henschke & Co v Rosemount Estates Pty Ltd (2000) 52 IPR 42, 62 [43] (Ryan, Branson and Lehane JJ).
- the correct approach is to compare the impression (allowing for imperfect recollection) that the notional buyer would have of the registered mark (as notionally used on all of the goods or services covered by the registration), with the impression that the notional buyer would have of notional and normal fair use of the opposed mark;[18]
- ‘deceived’ implies the creation of an incorrect belief or mental impression; ‘causing confusion’ may merely involve ‘perplexing or mixing up the minds’ of potential customers;[19]
- the usual manner in which ordinary people behave must be the test of what confusion or deception may be expected, having regard to the character of the customers who would be likely to buy the goods in issue;[20]
- it is not necessary to establish actual probability of deception or confusion, but a mere possibility of confusion is not enough. There must a real, tangible danger of deception or confusion occurring. It is enough if the notional buyer would entertain a reasonable doubt as to whether, due to the resemblance between the marks, the two products come from the same source. Put another way, there must be ‘a real likelihood that some people will wonder or be left in doubt about whether the two sets of products ... come from the same source’;[21]
- evidence of actual confusion is of great weight, but not essential, and lack of such evidence may also be relevant;[22] and
[18] Shell (n 9), 415.
[19] Coca-Cola Company v All-Fect Distributors Ltd (1999) 96 FCR 107, 122 [39] (Black CJ, Sundberg and Finkelstein JJ) quoting Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd [1978] 2 NZLR 50, 62 (Richardson J).
[20] Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45, 79 [83] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[21] Registrar of Trade Marks v Woolworths [1999] FCA 1020, [50(ii)] (French J) (‘Woolworths’) restating the principles from Southern Cross (n 5) 594-595.
[22] Australian Woollen Mills (n 14).
·any intention to deceive or cause confusion may be a relevant consideration but is not required.[23]
[23] Hashtag Burgers Pty Ltd v In-N-Out Burgers Inc (2020) 385 ALR 514, 533 [67] (Nicholas, Yates and Burley JJ) citing Australian Woollen Mills (n 14), 657.
Justice French expressed the view in Woolworths[24] that the determination of whether, and to what degree, an applicant’s goods or services are similar to, or closely related to, the relevant goods or services of the earlier trade mark owner is ‘logically antecedent to’ assessing the similarity of the parties’ trade marks. In particular, French J explicitly approved the observation in Wilcox J’s first instance decision in the Woolworths Ltd v Registrar of Trade Marks matter that, ‘[t]he closer the relationship between the services and particular goods, the more likely any similarity in marks will prove deceptive’.[25]
[24] Woolworths (n 21), [39].
[25] [1998] FCA 1268.
In light of the authorities, I must decide whether there is a real, tangible danger of deception or confusion by reason of the use of the Trade Mark, having regard to the imperfect recollection of the notional consumer. That is not to be judged by a side-by-side comparison of, on the one hand, the Trade Mark, and on the other, the Opponent’s Marks. Rather, I am required to take all of the surrounding circumstances into consideration, including those in which the Trade Mark and the Opponent’s Marks are used and the circumstances in which the goods are and will be sold.
The Opponent submits:
·the dominant feature of the Opponent’s Marks is a tree rendered in silhouette as is the Trade Mark (noting that the lines above and to the right of the Trade Mark are not a significant part of the mark). The ideas of the respective marks are the same. The fact that they are both silhouettes will tend to prompt a recollection of an overall tree shape rather than of a particular type of tree, referring to the following comments of Latham CJ, with whom McTiernan J agreed in Jafferjee v Scarlett:
It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing.[26]
[26] (1937) 57 CLR 115.
·the shape of the tree in the Trade Mark is different, but not significantly so to an imperfectly recollecting consumer familiar with the Opponent’s Marks.
·the nature of the Opponent’s air freshening and fragrancing preparations and the Subset Goods indicates that they are purchased impulsively and by many people who will not be exerting extreme care or detailed attention to either the goods or the individual features of the mark when selecting the product.
The Holder submits there is no resemblance between the Trade Mark and the Opponent’s Marks. The respective marks depict trees, but neither the trees nor the respective marks resemble one another as a whole.
The Holder lists the differences between the respective marks in its submissions, shown in the table below:
Trade Mark
Opponent’s Marks
tree depicted on a coat of arms
silhouette of a tree with no coat of arms
apple tree
pine tree
branches, leaves and fruit of the apple tree, and some detail on the trunk
solid, basic silhouette of a pine tree
extensive root system of the apple tree
pine tree on a pedestal with no roots
root system creates a rounded bottom to the tree
pedestal is an oblong and has a flat bottom
top heavy design with a rounded cluster of leaves, branches and apples sitting above a narrow trunk
pine tree has a narrow apex at the top and it expands progressively below moving down the tree
asymmetrical
symmetrical
The Holder submits that in order for imperfect recollection to result in a real, tangible danger of deception or confusion when a consumer encounters the Trade Mark, the notional consumer would need to forget everything about the Opponent’s Marks other than that they depict a tree.
The Holder also submits that the likelihood of deception or confusion is even more remote when it is recognised that other traders have registered, and used, trade marks depicting trees in relation to the same or similar kinds of goods as the Opponent’s Marks. Consumers are therefore accustomed to the use of various different tree trade marks being used to distinguish different traders’ goods and are not likely to consider that use of any tree distinguishes one trader’s goods.
In respect of the Holder’s evidence that other traders have registered trade marks depicting trees in relation to the same or similar kinds of goods as the Opponent’s Marks,[27] this fact is largely irrelevant to this inquiry.[28]
[27] Ping [2] and [3] Exhibit 1, 2 and 3.
[28] Ocean Spray Cranberries Inc v Registrar of Trade Marks [2000] FCA 177, [35] (Wilcox J).
In respect of the Holder’s evidence that other traders use trade marks depicting trees in relation to the same or similar kinds of goods as the Opponent’s Marks,[29] I note that this evidence of market realities has low probative value as it was obtained after the Relevant Date and the sample size of single tree trade marks in use is very low. Therefore, it is not a true reflection of the state of the marketplace at the Relevant Date and I therefore accord this evidence little, if any, weight.
[29] Ping [2] Exhibit 1 and 2.
I note there is no evidence as to how or if the goods of any of the respective marks would be ordered orally. Therefore, in the comparison before me, I find that only a visual comparison is feasible.
In my opinion, the impression or recollection to be carried away and retained by the notional consumer with an imperfect recollection of the Opponent’s Marks is not that the Opponent’s Marks are merely a depiction of a tree but rather that the Opponent’s Marks are a depiction of a particular stylised version of a pine tree, which is a tree that does not bear fruit, is highly scented and from my own experience is a tree often used to scent many cleaning, air freshening and fragrancing preparations. The stylised pine tree is the only component of the Opponent’s Marks.
While the idea and concept of the Opponent’s Marks is a tree, one cannot simply ignore the significance of the core features of the Opponent’s Marks namely the particular stylisation of the pine tree. I consider this feature is as essential to the imperfect recollection that the notional buyer would have. The notional buyer would recall the Opponent’s Marks as a particular stylised form of a pine tree rather than just a tree.
I consider that while the Trade Mark comprises a tree element, this tree element is not a pine tree and nor does it have a shape nor any features which resemble the Opponent’s stylised pine tree. The Trade Mark is clearly a stylised depiction of a fruit tree (most probably an apple tree) being a tree with branches and leaves, fruit on some branches and a mass of roots under the tree. Other than the concept that the Trade Mark and the Opponent’s Marks are depictions of trees, the similarity ends there.
I do not agree with the Opponent’s submission that the respective marks are both silhouettes and that this fact alone will tend to prompt a recollection of an overall tree shape rather than of a particular type of tree. A silhouette is defined in the Macquarie Dictionary Online as 1 ‘an outline drawing, uniformly filled in black, like a shadow’ and 2 ‘a dark image outlined against a lighter background’. The Opponent’s Marks fall within this definition but the Trade Mark does not. The Trade Mark is a drawing of a tree and is not a silhouette. Further, even if the respective marks were both silhouettes of a tree, it does not follow that this common idea alone will result in a conclusion that the Trade Mark is deceptively similar to the Opponent’s Marks. Conveying a common idea only becomes relevant if the marks themselves look alike, which in this case they do not.
In Cooper Engineering Company Proprietary Limited v Sigmund Pumps Limited, the High Court observed:
[t]he fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive.[30]
[30] (1952) 86 CLR 536, 539.
The Opponent directed me to the decisions of Ferrari SpA v Wicara Enterprises[31] and BlendTec Inc v Healthy Foods LLC[32] as useful guidance to illustrate that quite wide divergences in logo shape and design can support findings of deceptive similarity. I am not assisted by the provision of cases which involves a comparison of marks that are materially different (both in the nature of the marks and the good/services for which they are registered) to the marks before me in the present case. Each case must be decided on the merits and in applying the test under s 44, I am not assisted by knowing that the Registrar found that s 44 was satisfied when comparing (sought to be registered for clothing) and or (sought to be registered for electric food processors) and .
[31] [2010] ATMO 96 (Hearing Officer O’Brien).
[32] [2016] ATMO 69 (Hearing Officer Worth).
In my opinion, the notional buyer would be left with a strikingly different impression of the Trade Mark from the effect produced by the Opponent’s Marks. Even with an imperfect recollection, there is no real risk that a buyer could confuse the Trade Mark, in view of its distinct visual impression, to that of the Opponent’s Marks.
Some of the Subset Goods such as air fragrancing preparations, reed diffusers, scented sachets, scented room sprays and candles may have the same commercial source as the Opponent’s air fragrancing and air freshening goods. While I agree that some air freshening and fragrancing preparations may be purchased without a high degree of care, I do not believe this to be the case for perfume for personal use, reed diffusers, scented sachets and candles. I consider greater care is generally taken in purchasing these goods given the scent, composition and features of such goods would be important to a consumer.
Regardless of whether the Subset Goods are purchased with or without great care, I consider that even the briefest of visual inspections would enable a consumer to readily distinguish the Trade Mark from the Opponent’s Marks. Further, if the respective goods are purchased online, the visual distinctions between the respective marks are more difficult to overlook.
I am therefore not satisfied that there is a real, tangible risk that a notional buyer of ordinary intelligence and memory, with a recollection only of the Opponent’s Marks, would be perplexed, mixed up, caused to wonder, or left in doubt, about whether the Subset Goods have the same commercial source as the goods of the Opponent’s Marks. Any risk of confusion between the Trade Mark and the Opponent’s Marks is a remote possibility rather than a real tangible danger of confusion.
I therefore find that the Trade Mark is not deceptively similar any of the Opponent’s Marks and the Opponent has not made out the ground of opposition under s 44.
Section 60
The provisions of s 60 are reproduced below:
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.
61. To establish this ground, the Opponent must demonstrate the existence of another trade mark(s) which had acquired a reputation in Australia before the Relevant Date. The Opponent must then establish that because of this reputation, use of the Trade Mark would be likely to deceive or cause confusion.
62. The SGP identifies the Opponent’s Marks as supporting this ground of opposition namely the trade mark . The Opponent claims that by virtue of the extensive use of and significant reputation in the Opponent’s Marks, use of the Trade Mark in respect of the Subset Goods, which overlap with the goods of the Opponent’s Marks, is inherently likely to deceive or cause confusion in the Australian marketplace.
Reputation
63. The meaning of reputation was considered by Kenny J in McCormick & Co Inc v McCormick (‘McCormick’) as referring to ‘the recognition of the [trade mark] by the public generally’.[33]
[33] [2000] FCA 1335, [81].
64. Further, Kenny J stated in McCormick that:
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 ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[34]
[34] Ibid [86].
65. The reputation in the other trade mark must be amongst a ‘significant or substantial’ number of Australian consumers but this is tempered by the nature of the relevant market.[35] Here the relevant market is the scented products market and as such, is likely to include most Australian households. Meanwhile, the ‘existence and extent of reputation’ must be established as a matter of fact by the Opponent.[36]
[35] See, eg, Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170, [75] (Moore, Tamberlin and Goldberg JJ).
[36] ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159, [57] (Lockhart, Gummow and French JJ).
66. In Rodney Jane Racing Pty Ltd v Monster Energy Company, it was 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.[37]
[37] [2019] 142 IPR 275, [83] (O’Bryan J).
67. The Opponent submits that the Opponent has evidenced the notoriety of the Opponent’s Marks, which are highly inherently distinctive, through extensive sales, forms of advertising and marketing including instore displays and the ubiquitous presence of the Opponent’s air fresheners and fragrances in store, including physical and online stores, such as well-known supermarkets and large retailers, and this evidence supports a finding of likely deception or confusion as to the origin of any of the Subset Goods marketed under the Trade Mark, being a tree silhouette device.[38]
[38] Reference is made to me comments at [52] of this decision that the Trade Mark is not a silhouette.
68. Further, the Opponent submits that the s 60 enquiry, like that under s 44, requires consideration of the notional use of the Trade Mark. The Opponent submits that this notional use encompasses the offer for sale of copycat fragranced tree silhouette shaped hanging items. Notional use means use of the respective marks in a ‘normal and fair manner’ for all the goods or services covered by the registration or application in question.[39] While I accept that the s 60 (and s 44) enquiry requires consideration of the notional use of the Trade Mark, I do not accept that notional use of a 2 dimensional device trade mark extends to the use of that trade mark as the shape of the goods themselves. To me this would not be a legitimate notional use of a tree device trade mark.
[39] Re Smith Hayden & Co Ltd (1946) 63 RPC 97, 101 (Ch D) (Evershed J).
69. The Holder refers to the findings of Hearing Officer Berger in respect of the reputation in the Opponent’s Mark in Julius Samann Ltd v Skandinavisk SR SpS (‘Julius Samaan’).[40] In that decision, the Hearing Officer held that:
… given the very longstanding and extensive use of the JSL Tree Design, and in the absence of any evidence of third parties selling tree shaped air fresheners, I accept that the Opponent had developed a reputation in the JSL Tree Design for air fresheners and air fragrancing preparations in Australia at the Relevant Date.[41]
Further, it is apparent from the evidence that the Opponent uses the word mark LITTLE TREES in a dominant fashion in conjunction with and/or close proximity to the JSL Tree Design in almost all instances. Although the JSL Tree Design may have a reputation itself, it is unlikely that reputation exists without knowledge of the LITTLE TREES word mark. Consumers seeing a tree shaped air freshener or air freshener featuring a tree prominently on the packaging will likely also expect to see the LITTLE TREES mark.[42]
[40] [2022] ATMO 61 (‘Julius Samann’).
[41] Ibid [40].
[42] Ibid [45].
70. The Holder submits that the evidence filed by the Opponent in this proceeding does not enable a finding that the reputation of the Opponent’s Marks is any stronger than was found by Hearing Officer Berger. To this end, I note from the evidence filed by the Opponent, that the vast majority of examples of use provided of the Opponent’s Marks are accompanied, usually in close proximity, by the trade mark LITTLE TREES. This is especially so in respect of the packaging of car air fresheners and descriptions of the Opponent’s Marks on websites and in catalogues. I also note that the Opponent’s Marks is rarely used without reference to the trade mark LITTLE TREES. Thus, bearing this and the following in mind:
·the Relevant Date in this opposition for the s 60 ground is 22 March 2022; and
·I am not bound by Hearing Officer Berger’s decision;
I have no reason to disagree with the conclusion reached by Hearing Officer Berger that although the Opponent’s Marks may themselves have a reputation, it is unlikely that reputation exists without knowledge of the LITTLE TREES mark. Therefore, consumers seeing a tree shaped air freshener or air freshener featuring a tree prominently on the packaging will likely also expect to see the LITTLE TREES mark.
71. The Holder also submits that the Opponent’s Marks are not highly inherently distinctive as the Holder’s evidence shows other traders use tree devices and other traders also use tree devices to indicate the scent of a product.
72. Pursuant to s 60(b), I will now give consideration as to whether, because of the reputation of the Opponent’s Marks, use of the Trade Mark would be likely to deceive or cause confusion.
Likely to deceive or cause confusion
The concepts of ‘deceived’ and ‘confusion’ were considered in the New Zealand case of Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd wherein Richardson J observed:
“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.[43]
[43] [1979] RPC 410, 423 (citation omitted).
The likelihood of deception or confusion must be real and tangible.[44] The test for confusion under s 60 is not limited to whether consumers might think that the respective marks are the same. It is sufficient ‘if people would have cause to wonder’ whether the Subset Goods appearing in relation to the Trade Mark were being provided by the Opponent.[45] To this end, it has been observed that ‘the threshold for confusion is not high’[46] and confusion can be established even if it ‘is unlikely to persist up to the point of, and contribute to, inducing sale’.[47]
[44] Southern Cross (n 5) 595.
[45] Insight Radiology Pty Ltd v Insight Clinical Imaging Pty Ltd (2016) 122 IPR 232, [76] (Davies J).
[46] Australian Postal Corporation v Digital Post Australia [2013] FCAFC 153, [70] (North, Middleton and Barker JJ).
[47] Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252, [105] (Dodds-Streeton J).
Here the relevant comparison is between the reputation of the Opponent’s Marks which, as referred to above at [71] of this decision, is unlikely to exist without knowledge of the LITTLE TREES mark, and a notional normal and fair use of the Trade Mark in respect of each of the Subset Goods.
There is no requirement to demonstrate that the trade marks in question are substantially identical or deceptively similar within the meaning of Act. Nevertheless, it has been observed that:
Confusion cannot arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent’s trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.[48]
[48] Rogers Seller & Myhill Pty Ltd v Reece Pty Ltd [2010] ATMO 5 (Hearing Officer Lyons), [39] (emphasis in original). See also Qantas Airways Limited v Edwards [2016] FCA 729, [142] (Yates J).
In summary, here the assessment of the likelihood of deception or confusion is informed by the strength of the reputation of the Opponent’s Marks, the inherent distinctiveness thereof, the degree of similarity between the trade marks under consideration and the nexus or connection between the goods of the parties. Each of these is a variable.
There is no dispute that there is nexus between some of the Subset Goods and the Opponent’s air freshening and air fragrancing preparations. As to the inherent distinctiveness of the Opponent’s Marks, while as the Opponent submits it is true that there is no evidence that any other tree device has a reputation for air freshening and air fragrancing preparations, from my own knowledge, I agree with the Holder that other traders use tree devices to indicate the scent of a product. I also refer to the comments of Hearing Office Berger in Julius Samaan that:
In my view, the scent of various trees such as pines and spruce trees are commonly used for household and fragrance products including candles and air fresheners. It is not unusual for manufacturers and retailers to adopt a word or device that suggests the products have a certain scent, are natural or otherwise connected to the earth.[49]
[49] Julius Samaan (n 40), [47].
With respect to the degree of similarity, for the reasons provided in relation to the s 44 ground of opposition, I consider the differences between the Trade Mark and the Opponent’s Marks are too notable for the Opponent to establish a likelihood of deception or confusion irrespective of the reputation acquired by the Opponent’s Marks within Australia. Consumers who encounter air fresheners and air fragrancing preparations bearing the Trade Mark would not likely be confused or deceived as to the origin of those goods due to the Opponent’s Marks or to assume the Subset Goods have any association with the Opponent.
As I am not satisfied that there is a real and tangible danger that use of the Trade Mark would be likely to deceive, or cause confusion amongst, a significant or substantial number of relevant consumers, the s 60 ground of opposition has not been established.
Section 42(b)
Section 42(b) provides that a trade mark must be rejected if its use would be contrary to law.
In its SGP, the Opponent claims that use of the Trade Mark in the course of trade is likely to contravene section 120 of the Trade Marks Act 1995 (Cth), sections 18 and 29 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act2010) (Cth) (‘ACL’) and constitute the tort of passing off.
ACL
Section 18 of the ACL concerns conduct or representations that have, or are likely to, mislead or deceive. Section 29 of the ACL concerns representations that are false or misleading. These are stricter requirements than s 60 which can be established if the use is likely to cause confusion or wonderment.[50]
[50] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 198 (Gibbs CJ); Monster Energy Company v Mixi Inc [2020] FCA 1398, [33] (Stewart J).
For the s 42(b) ground of opposition, the Opponent seeks to rely on the reputation in the Opponent’s Marks which I have already discussed in relation to the s 60 ground of opposition. Where a ground of opposition under s 60 is unsuccessful, reputation-based claims under ss 18 and/or 29 of the ACL will also fail.[51]
[51] Re Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 (Hill J) (‘Re Equity’); Riding for the Disabled Association of Australia Limited v Pony Club Australia Pty Ltd [2019] ATMO 63, [63]-[64] (Hearing Officer Richards).
Section 120 and passing off
The Opponent’s submissions are silent on the claims to contravention of s 120 and passing off. While the Opponent’s submissions are silent, for completeness, pursuant to s 125, an action for infringement of a registered trade mark be brought in a prescribed court or any other court that has jurisdiction to hear the action. An opposition before the Registrar is not a proceeding before a court. As such:
[I]t is unlikely that the Delegate has the jurisdiction to hear a section 120 action by virtue of section 42(b). In any event, the wording and effect of section 120 is similar to sections 44 and 60 of the Act. If it were appropriate for me to determine s120 (and I am of the view that it is not), the issues have already been adequately covered by the other grounds of opposition.[52]
[52] Parkside Towbars Pty Ltd v Tow-Safe Pty Ltd [2011] ATMO 17, [38] (Hearing Officer Wilson).
I also note that where use of a trade mark does not contravene s 18 of the ACL neither will it amount to the tort of passing off.[53]
[53] Re Equity (n 51), [40].
I am not satisfied that use of the Trade Mark by the Holder would be contrary to law. Therefore, the Opponent has not established the ground of opposition under s 42(b) in respect of the Subset Goods.
Decision
I find that the Opponent has failed to establish any of the grounds of opposition it nominated in the SGP. Accordingly, extension of protection of the Holder’s Mark may proceed not less than one month from the date of this decision.
If the Registrar is served with a notice of appeal, I direct that extension of protection of the IRDA shall not occur until either the appeal is withdrawn or discontinued. Otherwise, the disposition of the application should be in accordance with the Court’s order or direction.
Costs
Both parties have sought costs. 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 s 221 in the relevant amounts under Schedule 8 of the Regulations
Anne Makrigiorgos
Hearing Officer
Delegate of the Registrar of Trade Marks
24 February 2025
Annexure A
Class 3: Non-medicated cosmetics and toiletry preparations; non-medicated dentifrices; perfumery, essential oils; bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; air fragrancing preparations; bleaching preparations [decolorants] for household purposes; chemical cleaning preparations for household purposes; cleaning preparations; detergents, other than for use in manufacturing operations and for medical purposes; fumigation preparations [perfumes]; toiletries; cosmetics; skin cleansing preparations; skin care preparations; hair cleansing preparations; hair care preparations; shower gel; body lotion; body butter; beauty masks; hand cream; lip balm; make-up; soap; hand wash, sun protection cream; reed diffusers; scented sachets; scented room sprays; pot pourri oil; perfume; cleaning sprays; cleaning fluids; cleaning substances for household use; cleaning preparations for household purposes; cleaning preparations for patios, paths, driveways, fencing and decking; mould removing preparations.
Class 4: Candles; tea lights; candles; scented candles; nightlights [candles]; wicks for lighting; wicks for candles; Christmas tree candles; wax; candle wax; wax for lighting; beeswax; firelighters; firewood; fuel; lamp wicks; lubricants; wood briquettes.
Class 6: Metal materials for building and construction; small items of metal hardware; metal containers for storage; metal storage sheds; sheds [buildings] of metal; bicycle sheds [structures] of metal; stores [strong rooms] of metal; metal screens [other than furniture]; metal fence panels; sheds [buildings] of metal; arches of metal; metal structures; metal lock boxes; securing wire for plants; wire nets and gauzes; wire; pergolas of metal; garden arches of metal; obelisks of metal; baskets of metal; cabins made of metal; cold frames of metal; metal greenhouses; trellis of metal; metal fencing; gates of metal; blinds of metal; compost bins of metal; arbours of metal; insect screens; baskets of metal.
Class 8: Hand tools and implements, hand operated; garden tools and equipment (hand-operated); manicure sets; pedicure sets; pincers; knives, forks and spoons being cutlery; trowels; weeding forks; digging forks; rakes; secateurs; pruners; hoes; spades; shovels; hand-operated cultivators for gardening; shears; scissors; tool belts; tool bags [filled]; hand-operated garden tools; sprays [hand-operated tools]; agricultural sprayers [hand operated]; razors; nippers; trowels; insecticide vaporizers; lawn aerators (hand-operated); spiked rollers (hand-operated tools) for use in soil aeration; dibbers; lawn edgers; fruit pickers [hand tools]; forks; knives; loppers [hand tools]; hand saws; fertilizer scoops; shears; weeding tools [hand operated]; cake cutters.
Class 9: Apparatus and instruments for recording, transmitting, reproducing or processing sound, images or data; recorded and downloadable media; bags adapted for laptops; downloadable computer software applications; decorative magnets; downloadable graphics for mobile phones; downloadable image files; audio visual recordings; audio recordings; video recordings; downloadable e-books; downloadable educational course materials; downloadable podcasts; downloadable sound recordings; compact discs; downloadable electronic publications; downloadable electronic publications relating to gardens, gardening and horticulture; downloadable instructional material; cases for mobile phones and tablet computers; covers for mobile phones and tablet computers; spectacles; sunglasses; cases for spectacles; cases for sunglasses; protective eyewear; gloves for protection against accidents; knee-pads for workers; protective helmets; protective masks; science sets for children being teaching apparatus; protective clothing; rain gauges; thermometers; kitchen scales; virtual reality software and hardware; augmented reality software and hardware; computer software and application software in the field of artificial intelligence (AI); photographic slides.
Class 11: Apparatus and installations for lighting; apparatus and installations for heating; apparatus and installations for cooking; electric candles; flameless candles; Christmas lights [other than candles]; hot water bottles; fitted fabric covers for hot water bottles; ornamental fountains; irrigation apparatus for horticulture use; automatic watering installations; garden sprinklers [automatic]; lamps; lampshades; lamp fittings; lamp stands; lamp bases; electric propagators [heating installations]; fire pits; cooking grills; barbecue grills; barbecues; Christmas lights [other than candles]; LED candles; LED lamps; LED lightening installations.
Class 16: Paper, cardboard; printed matter; bookbinding material; stationery; drawing materials and materials for artists; paint brushes; instructional and teaching material; instructional and teaching material for gardening and horticulture; plastic materials for packaging (not included in other classes); printers' type; printing blocks; books; books relating to gardening and horticulture; educational books; education books relating to gardening and horticulture; fictional books; factual books; factual and instructional books relating to gardening and horticulture; recipe books; guide books; prints; prints relating to gardening and horticulture; canvas prints; prints of paintings, lithographs; photographs; photographs relating to gardening and horticulture; framed photographs; paintings; paintings relating to gardening and horticulture; framed paintings; lithographs; framed lithographs; printed illustrations; postcards; greetings cards; correspondence cards; books; photograph albums; books of images, photographs, lithographs, illustrations, prints and paintings; memo pads; diaries; calendars; advent calendars; address books; invitation cards; stickers; notebooks; shopping lists, printed; cards; posters; publications; brochures; booklets; pamphlets; periodicals; papers; leaflets; magazines; journals; jotters; writing materials; writing cases; writing implements; writing sets; pens; blotters; address books; pencil cases; pen sets; pencil sets; clipboards; lining paper for drawers; scented lining paper for drawers; desk pads; flower pot covers of paper; albums; table cloths, table linen and table napkins, all of paper; paper, pads and books, all for writing or for drawings; wrapping paper; gift wrap; instructional and teaching material relating to horticulture; gift bags; gift boxes; gift tags; tissue paper; paper shopping bags; paper bags and sacks; place mats of paper; paper coasters; paper lunch bags; plastic films for wrapping; paper handkerchiefs; paper towels; decorative boxes made of paper; plastic films for wrapping; plastic films for packaging; score-cards; score pads.
Class 18: Leather and imitations of leather; luggage and carrying bags; umbrellas and parasols; walking sticks; collars, leashes and clothing for animals; bags; cosmetic bags; make-up bags; handbags made of polyvinyl chloride; tool bags, empty; canvas bags; tote bags; backpacks; bags; toiletry bags; wallets; credit card holders; purses; handbags; hiking sticks; key cases; rucksacks; shopping bags; travelling bags.
Class 19: Building materials (non-metallic); non-metallic transportable buildings; monuments, not of metal; bird baths [structures, not of metal]; chicken-houses, not of metal; works of art of stone, concrete or marble; lime; limestone; garden sheds of wood; garden sheds of non-metallic materials; sheds; bicycle sheds [structures] of non-metallic materials; sand; gravel; grit; paving stones; huts; stones; curb stones; wooden buildings; buildings (non-metallic -) in the form of cabins; pergolas (non-metallic); garden arches (non-metallic); obelisks (non-metallic); non-metallic cold frames; non-metal greenhouse frames; trellises, not of metal; non-metallic fencing; non-metal gates; tiles; non-metallic laminates being building materials; monuments, not of metal; huts; greenhouses, transportable, not of metal; outdoor blinds, not of metal and not of textile; insect screens.
Class 20: Furniture; outdoor furniture; mirrors; picture frames; containers, not of metal, for storage or transport; works of art of wood, wax, plaster or plastic; bins, not of metal; nesting boxes; wind chimes; flower-pot pedestals; kennels for household pets; bean bags; stools; kneeling stools; kneeling frames in the nature of stools; seat pads; chair pads; wicker baskets; hampers [baskets]; storage baskets [furniture]; crates; seats; tables; covers (shaped -) for furniture; table tops; cushions; indoor blinds; personal compact mirrors; compost bins of plastic; plant markers of wood; non-metallic hanging baskets for flower, other than for household purposes; cushions for kneeling or sitting on; pads for kneeling or sitting on; kneelers; water butts, not of metal.
Class 21: Household or kitchen utensils and containers; cookware and tableware, except forks, knives and spoons; combs and sponges; brushes, except paintbrushes; brush-making materials; articles for cleaning purposes; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware; bird baths; birdcages; cages for household pets; cosmetic utensils; gardening gloves; indoor terrariums [plant cultivation]; sprinklers for watering flowers and plants; syringes for watering flowers and plants; watering cans; cool bags; lunch boxes; fitted toilet bags; thermal insulated bags for food or beverages; oven gloves; mugs; ceramic mugs; cups; tea cosies; place mats, not of paper or textile; place mats of plastic; fitted cosmetic bags; plates; bowls; napkin holders; trays; potting trays; baskets for household purposes; plates; litter baskets; laundry baskets; plant baskets; fitted picnic baskets; flasks; tea sets; perfume bottles; perfume sprayers; cake stands; biscuit barrels; toast racks; pottery; cleaning articles; buckets; watering cans; waste baskets; bird feeding tables; sprinklers; lawn sprinklers; insect traps; coasters (tableware); drinking vessels; vacuum flasks; bottles; chopping boards; food storage containers; picnic crockery; toothbrushes; jugs; vases; goblets; flower pots; plant pots; pots; planters of earthenware; planters of porcelain; planters of clay; tumblers; window boxes; repotting containers for plants; containers for flowers; serving utensils.
Class 24: Textiles; textile material; bed and table covers; curtains of textile or plastic; shower curtains of textile or plastic; sleeping bags; tea towels; place mats, not of paper; table cloths not of paper; table napkins of textile; towels; bed linen; textile coasters; fleece made from polyester; textile handkerchiefs; covers [loose] for furniture; fabrics for textile use; picnic blankets; fleece made from polyester; insect protection mesh; wall hangings; decorative wall hangings of textile.
Class 25: Clothing, footwear, headgear; aprons; sandals; boots; slippers; scarves; socks; caps; shoes; shirts; nightwear; eye masks; sleep masks; belts [clothing]; coats; earmuffs [clothing]; hats; headbands [clothing]; jackets [clothing]; jerseys [clothing]; leggings [trousers]; outer clothing; overalls; shawls; tee-shirts; trousers; waterproof clothing; children's clothing; wellington boots.
Class 27: Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings (non-textile); wallpaper; artificial turf; artificial grass; wallcoverings; vinyl wall coverings; door mats; bath mats; mural hangings (non-textile).
Class 28: Games, toys and playthings; video game apparatus; gymnastic and sporting articles; decorations for Christmas trees; playing cards; card games; Christmas trees of synthetic material; toy tea sets; Christmas crackers; swings; balls for games; building games; jigsaw puzzles; scale model kits; toy models.
Class 29: Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk, cheese, butter, yogurt and other milk products; cream [dairy products]; oils and fats for food; fruit spreads; nut-based spreads; vegetable preserves; vegetable pastes; fruit preserves; marmalade; meat preserves; preserves, pickles; processed seeds; nuts, prepared; olives, prepared; potato based snack foods; fruit based snack foods; nut based snack foods; seed based snack foods; vegetable based snack foods; turkey.
Class 30: Coffee, tea, cocoa and coffee substitutes; rice, pasta and noodles; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; chocolate; ice cream, sorbets and other edible ices; sugar, honey, treacle; yeast, baking-powder; salt, seasonings, spices, preserved herbs; vinegar, sauces and other condiments; ice [frozen water]; spices; ice; chocolates; nougat; sweets; boiled sweets; fruit jellies; candy; fudge; toffee; truffles; flakes of chocolate; chutneys; savoury sauces, chutneys and pastes; biscuits; cookies; cakes; cereal-based snack food; chocolate-based beverages; chocolate-based spreads; chutneys [condiments]; coffee-based beverages; condiments; crackers; ice cream; oat-based food; rice-based snack food; sandwiches; sweets; tea-based beverages; herbal teas; fruit sauces.
Class 31: Grains and agricultural, horticultural and forestry products not included in other classes; fresh fruits and vegetables; seeds; seedlings; grasses; natural plants and flowers; foodstuffs for animals; malt; plants; grafted plants and flowers; hybrid plants and flowers; genetically modified plants and flowers; trees; shrubs; foliage plants; house plants; bulbs; tubers; corns; fresh herbs; hedging plants; turf; bird food; mulch; bark mulches; turkeys [live]; fresh cut wreaths; fresh cut garlands.
0
26
0