Kathryn Hams v Indian Motorcycle International, LLC

[2016] ATMO 78

TRADE MARKS ACT 1995

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

Re:Opposition by Kathryn Hams to application under section 92 of the Act by Indian Motorcycle International, LLC to remove trade mark number 1252861 (12) - CHIEFTAIN (Logo) - in the name of Kathryn Hams.

Delegate:

Debrett G. Lyons

Representation:

Opponent: Kathryn Hams, self-represented

Applicant: Fiona Bustos-McNeil of Counsel instructed by Norton Rose Fulbright, Solicitors

Decision:

2016 ATMO 78

Trade Marks Act 1995 – sec.92 application for removal – whether use of the Trade Mark on the Registered Goods; exercise of Registrar’s discretion. Application for removal partly successful; Trade Mark to be removed from the Register for some goods.

Background

1. This decision is pursuant to an application (the “Removal Application”) made on 1 May 2014 under sections 92(4)(a) and 92(4)(b) of the Trade Marks Act 1995 (“the Act”) by Indian Motorcycle International, LLC (“IMI” or the “Applicant”) to remove the trade mark shown below (the “Trade Mark”) from the Register of Trade Marks in respect of all of the goods for which the Trade Mark is registered.

Registration No.	1252861
Filing date	23 July 2008
Registered Goods	Class 12: Automotive land vehicles; automotive vehicles; land automotive vehicles; spoilers for automotive vehicles
Trade Mark

1. Continuing registration of the Trade Mark in its present form has so far prevented the acceptance for registration of Trade Mark Application 1573673 for the trade mark, CHIEFTAIN, filed by IMI on 8 August 2013 in class 12 in respect of ‘Motorcycles and structural parts therefor.’

2. Kathryn Hams (the “Opponent”) has opposed the Removal Application, filing a Notice of Intention to Oppose removal on 14 July 2014 and a Statement of Grounds and Particulars on 13 August 2014.  The Applicant filed a Notice of Intention to Defend on 16 September 2014.

3. The parties subsequently filed evidence which is described later, after which a hearing was convened in Canberra before me, Debrett Lyons, a delegate of the Registrar, on 27 June, 2016.  

   Legislative framework and Outline submissions

4. Part 9 of the Act deals with removal of trade marks from the Register for non-use. Section 92 relevantly provides:

   92Application for removal of trade mark from Register etc.

   (4)An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:

      (a)  that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

   (i)  to use the trade mark in Australia; or

   (ii)  to authorise the use of the trade mark in Australia; or

   (iii)  to assign the trade mark to a body corporate for use by the body corporate in Australia;

   in relation to the goods and/or services to which the non-use application relates and that the registered owner:

   (iv)  has not used the trade mark in Australia; or

   (v)  has not used the trade mark in good faith in Australia;

   in relation to those goods and/or services at any time before the period of one month ending on the day on which the non-use application is filed;

   (b)that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:

   (i)used the trade mark in Australia; or

   (ii)used the trade mark in good faith in Australia;

   in relation to the goods and/or services to which the application relates.

   Note 1:For file and month see section 6.

   Note 2:If non‑use of a trade mark has been established in a particular place or export market, then instead of the trade mark being removed from the Register, conditions or limitations may be imposed under section 102 on the registration of the trade mark so that its registration does not extend to that place or export market.

5. As stated, the Removal Application relates to all of the registered goods.  For the purposes of this decision, those goods can be redescribed as automotive vehicles and spoilers for automotive vehicles (the “Registered Goods”).

6. Thus, the allegation under s92(4)(a) is that on 23 July 2008 the Opponent had no good faith intention to use, or authorise the use, of the Trade Mark in connection with the Registered Goods and that up until 1 April 2014[1] had not made any such use of the Trade Mark.

   [1] Being one month before the filing date of the Removal Application.

7. Thus, the allegation under s92(4)(b) is that in the three years immediately preceding 1 April 2014 the Opponent had not used the Trade Mark in good faith in connection with the Registered Goods.

8. I note here that whilst sections 92(4)(a) and (b) provide distinct and alternative grounds for removal, it is said that paragraph (a) “merges” with paragraph (b) once the trade mark the subject of the removal application has been registered for five years.[2] Section 93(2) states that an application under section 92(4)(b) may not be made before a period of 5 years has passed from the filing date[3] in respect of the application for the registration of the trade mark. So far as section 92(4)(b) goes, intention is irrelevant. The only consideration is whether the mark has been used or not. So it is said that once 5 years has passed the issue of intention disappears entirely. If the owner has used the mark then neither section 92(4)(a) or (b) is established; if not, then section 92(4)(b) is successful and any intention or lack of it at the filing date as far as s 92(4)(a) is concerned is irrelevant.[4]  

   [2] Mark Davison, Tracey Berger and Annette Freeman, Shanahan’s Australian Law of Trade Marks and Passing Off (Lawbook Co., 4^th ed, 2008) [70.510].

   [3] “filing date” is defined in section 6 to mean “the day on which the application is filed”.

   [4] Although not critical in this case, I note that this “merger” is conditional: it assumes, first and as would be so in most cases, that the two grounds are directed against either all of the registered goods or against the same subset of those goods; secondly, it is to noted that the “defence” to non-use in s.100(3)(c) concerning obstacles to use pertains only to s.92(4)(b).

9. As the Trade Mark has been registered for a period longer than five years it is necessary only for me to consider the application for removal under s 92(4)(b). The particulars of the opposition specified in the Statement of Grounds and Particulars in that regard are that:

   ·     The Trade Mark has been used by [the Opponent] in respect of the goods for which the Trade Mark is registered (or goods of the same or similar description to the registered goods), within the period of three years ending one month before the day on which the Removal Application was filed;

   ·     The discretion of the Registrar should be exercised in favour of the Opponent by virtue of the circumstances surrounding the use and registration of the Trade Mark.

10. The Applicant’s submissions are that:

    ·     the Opponent is not able to establish any instance of genuine use of the Trade Mark either in the relevant periods or in connection with the Registered Goods or similar goods; and/or

    ·     any use of the Trade Mark has been by an unauthorised third party

11. Section 100 of the Act states that the onus of rebutting an allegation of non-use lies with the Opponent. The burden of proof is the ordinary civil standard of the balance of probabilities.[5]

    [5] Pfizer Products Inc. v Karam [2006] FCA 1663 and more recently: Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156.

    The Hearing & the Evidence

12. At the 27 June 2016 hearing the Opponent was self-represented and was accompanied by Jacinta Dooley              .  The Applicant was represented by Fiona Bustos-McNeil of Counsel, instructed by Norton Rose Fulbright, Solicitors.   Both sides appeared before me in person.

13. The fortnight prior to the hearing was overshadowed by the Opponent’s largely unarticulated requirement that I make allowance for the attendance, swearing in and oral evidence of three persons who would accompany the Opponent, namely, Jacinta Dooley, Sean Kelly and Simon King.

14. The hearing was potentially delayed by the non-appearance of Messrs Kelly and King whom the Opponent was unable to contact by telephone.  I commenced the hearing giving directions to IP Australia security staff to admit those gentlemen to the hearing if and when they arrived.  There was no sign of either by the time the hearing concluded.

15. In my assessment, the attendance of Messrs Kelly and King would not have influenced the outcome of this matter for the reasons which follow.  During the course of the hearing I questioned the Opponent as to the nature of the intended oral evidence.  It was explained to me that Jacinta Dooley was a web designer and had knowledge of the content of material on websites resolving from a domain name owned or controlled by the Opponent showing use of the Trade Mark.  It was confirmed that Sean Kelly was the declarant of some of the Opponent’s evidence in support of the opposition and that his attendance was requested so that he might answer any questions I had of him relative to that evidence.  That declaration is clear on its face to me.  I learned that Simon King was a journalist whom it seems was not intending to give any oral evidence.

16. It became clear at the commencement of the hearing that the Opponent felt that I was capable of making a decision based on the material already filed before the hearing.  Accordingly the Opponent showed no intention of making representations at the hearing and explained that her presence was only in order to offer clarification if required. 

17. During the conduct of the hearing I asked numerous questions of the Opponent aimed at linking some of the evidence together.  Although at times the Opponent strayed from material on record prior to the hearing and had not been sworn to give further evidence, I found the Opponent truthful and open and generally the times when the Opponent went outside matters of record she did so in connection with issues which in the result had no influence on the outcome for the reasons which follow.

18. The declaratory evidence of both parties was on several occasions filed out of time or incompletely.  The period leading up to the hearing was marked by late evidence filed by the Opponent in response to what were my directions for outline arguments.

19. Prior to the hearing I wrote to both parties indicating that as a preliminary matter I would hear both sides on the admissibility of certain evidence.  As the hearing unfolded it became clear to me that the better course of action, which I followed without objection from the parties, was to hear all of the submissions and make my own determination of whether or not any controversial evidence bore on the key matters.

20. This decision is made on the basis of all of the evidence filed (noting the Applicant’s objections in its written outline submissions) which consists of the following declarations:

    Opponent’s Evidence in Support 

    Kathryn Hams made on 2 January 2015, together with Exhibits KH-1 to KH-17;

    David Bugeja made on 1 January 2015, together with Exhibits DP-1 to DP-4; and

    Sean Kelly made on 3 January 2015, together with Exhibits SK-1 to SK-2.

    Applicant’s Evidence in Answer

    Sophia Nicole Christou made on 11 May 2015, including Annexures SNC-1 to SNC-11.

    Opponent’s Evidence in Reply

    Three declarations of Kathryn Hams all made on 17 August 2015 including annexures.

    Opponent’s Late Evidence

    Documents submitted under cover of email from Kathryn Hams dated 30 November 2015.

    Applicant’s Evidence in response to Opponent’s Late Evidence

    Sophia Nicole Christou made on 11 March 2016, including Annexures SNC-1 to SNC-5.

    Opponent’s Still Later Evidence

    Kathryn Hams made on 4 June 2016 including Annexures 1-11.

    Reasoning

21. The logical place to begin is with my assessment of whether the Trade Mark has been used in connection with the Registered Goods.

22. The claim is that the Trade Mark has been used in connection with canopies for utility vehicles, utility vehicle canopies with spoilers and motorcycle side-cars. [6]

    [6] This is the principal claim made by the Opponent herself and underscored at the hearing.  I note other evidence, for example, paragraph 6 of the declaration of Sean Kelly which states: “I associate the CHIEFTAIN brand and the Registered Mark with Ms Hams’ goods which include canopies, trailers and parts and accessories of automotive vehicles such as car top pods, motorcycle parts, side cars and side storage compartments for motorcycle vehicles” but since this is secondary evidence and since Mr Kelly does not provide documentary evidence in support of that statement I have adopted the Opponent’s position as expressed by Ms Hams herself. 

23. My finding is that utility vehicle canopies and motorcycle side-cars are not “automotive vehicles” and so do not come within the Registered Goods.  The Macquarie Dictionary defines the word “automotive” as (1) propelled by a self-contained power plant; (2) of or relating to motor vehicles.  I disregard the second definition because the Relevant Goods are limited to vehicles themselves.[7]  Since neither a utility vehicle canopy nor a motorcycle side-car is a self-propelled vehicle they are excluded from the Registered Goods. [8]

    [7] The Registered Goods described as “automotive vehicles” are finished cars, utility trucks, motorcycles, and so on.  It does not include parts and accessories for those vehicles.  If the Registered Goods had included, for example, “parts and accessories for automotive vehicles” then canopies for utility vehicles and side-cars for motorcycles would have fallen within the scope of the registration. 

    [8] In spite of Mr Kelly’s expressed opinion that once a side-car is appended to a motorcycle the two become one and so the side-car acquires the character of an automotive vehicle, I prefer the common sense view that a side-car is not motorised and so, per se, is not automotive.

24. Whether utility vehicle canopies with spoilers are “spoilers for automotive vehicles” is less easily answered.  There is evidence from Ms Hams of the distinction to be properly made between “spoilers” on the one hand (being design features intended to improve the aerodynamic efficiency of a body) and “wings” on the other (being design features which increase drag but can also increase the road traction of automotive vehicles) and of the commonly mistaken use of the term “spoiler” to refer to the latter.[9]  Nevertheless, there is no evidence of the separate sale of spoilers and so the issue becomes one of whether utility vehicle canopies that incorporate aerodynamic features of the former kind are essentially canopies or spoilers.

    [9] A mistake also made it would seem by the editors of the Macquarie Dictionary who define a “spoiler” in one sense as: “(on a motor vehicle) a surface, plane or shape, attached either at the front of the vehicle or the rear, which seeks to gain advantage in traction or handling from the aerodynamic forces created by the air rushing past it at speed.”

25. On the evidence and as a matter of common sense, I find that they are essentially canopies and so these goods are also outside the scope of the Registered Goods.

26. There is a question of whether use of the Trade Mark has been made on similar goods to the Registered Goods for the purposes of section 101(4) of the Act[10] and I return to that matter in connection with exercise of the Registrar’s discretion. However, for the purposes of section 92(4)(b), use of the Trade Mark on the Registered Goods is a threshold requirement and my findings in the above paragraphs are dispositive of that matter.

    [10] Subsection 101(4) provides

    Without limiting the matters the Registrar may take into account in deciding under subsection (3) not to remove a trade mark from the Register, the Registrar may take into account whether the trade mark has been used by its registered owner in respect of:

    (a)         similar goods or closely related services; or

    (b)         …

    to those to which the application relates.

27. Nevertheless, subsection 101(3) provides:

    (3) If satisfied that it is reasonable to do so, the Registrar or the court may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.

28. The discretion given to the Registrar by section 101 is a broad one with no express limits upon it.  In Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, their Honours noted at [35] that it is a discretion “limited only by the subject-matter, scope and purpose of the legislation and [in particular] Part 9 of the Act”. In Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252, Dodds-Streeton J stated at [463] that “[the Opponent] is not required to demonstrate ‘exceptional circumstances’ in order to enliven the discretion in s101(3) to retain the registration.”

29. Factors which the courts have taken into account include, relevantly to this case, (i) whether the Trade Mark has been abandoned; (ii) whether the Opponent has a residual reputation in the Trade Mark; and (iii) whether the Applicant for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the Trade Mark.[11]

    [11] Pioneer Computers Australia Pty Ltd v Pioneer KK [2009] FCA 135 at [169] citing E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 1005 [202]-[203].

30. Taken as a whole, the Opponent’s evidence might have been better marshalled.  The state of affairs was not improved by the Opponent’s decision to act for itself through much of the course of the proceedings.  Nevertheless, Ms Hams states in one of her declarations (and repeats essentially the same claim at other times) that: “‘CHIEFTAIN’ has been in the Automotive marketplace for 45 years and I have been the owner [for]25 years and in this time have built a strong reputation as an Australian Manufacturer”.   What comes out of the evidence is that a plain word version of the Trade Mark was first used by the Opponent’s predecessor-in-business and either that mark or the Trade Mark has been used since, at least in respect of canopies for utility vehicles. 

31. However inadequate the proof of Trade Mark usage may be, the Applicant has not provided any evidence that the Opponent has abandoned the Trade Mark.  Further, whatever shortcomings may exist in the assembly of the Opponent’s evidence in so far as its design to meet the Removal Application, it can still be fairly said that canopies for utility vehicles bearing the Trade Mark are known in this country.  The Opponent’s business uses the Trade Mark and no other.  Whilst much of the evidence is flawed in one way or another, it can reasonably be inferred that the Trade Mark has a reputation of some kind.

32. The Opponent’s business, either as a sole trader or in some collaboration with another legal entity, conducted over the time the Trade Mark has remained registered, has been consistently that of a fibreglass fabricator.  The extension of the business under the stewardship of the Opponent from fabrication of fibreglass canopies for utility vehicles to fabrication or intended fabrication of fibreglass motorcycle side-cars is in my opinion an unsurprising development.

33. The evidence is clear enough that bushfires in Western Sydney in 2013 devastated the Opponent’s one and only fabrication facility. Section 100(3)(c) states:

    the opponent has established that the trade mark was not used by its registered owner in relation to those goods and/or services during that period because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period.

34. Had this matter turned on section 92(4)(b) of the Act and alleged non-use of the Trade Mark in relation to the Registered Goods then I would have given very serious consideration to whether the Opponent had rebutted that allegation by reason of section 100(3)(c) and because of circumstances that were an obstacle to the use of the Trade Mark during the relevant period.

1. The Opponent’s photographic evidence of the aftermath of the September/October 2013 bushfires shows the remains of the fibreglass moulds for production of motorcycle side-cars.  The Opponent might not have adequately proven actual sales of, or actual dealings in, side-cars bearing the Trade Mark but this photographic evidence, taken together with other statements, is proof of serious preparatory steps towards offer of those goods and shows an objective commitment to use of the Trade Mark.[12]  Further, I would have been prepared to find that non-use from October 2013 to April 2014 was excusable under the circumstances.

   [12] See, for example, Angela Christou v Tonch Pty Ltd [2008] ATMO 24 at 24; Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at 40; Buying Systems (Aust) Pty Ltd v Studio SrL [1995] FCA 1063; Dick Smith Investments Pty Ltd v Ramsey [2016] FCA 939

2. I have dwelt on this matter for several reasons. First, because the move to side-car development is further proof of an ongoing commitment to use the Trade Mark. Second, because although the bushfires are most relevant to section 100(3)(c) of the Act (a matter I am unable to consider further for the reasons already given), the bushfires are also a factor indirectly relevant to the exercise of my discretion to allow the Trade Mark to remain on the Register. Third, because (intended) use of the Trade Mark in relation to side-cars is relevant to whether there has been use of the Trade Mark on similar goods to the Registered Goods. Finally, because the timing of events (detailed further below) would appear to negate any argument that the Opponent’s vigor to defend the Trade Mark from cancellation has been fueled only by the Applicant’s interest in the substantially identical trade mark.

3. The Applicant has little to say for itself.  There is no direct evidence from the Applicant company and when, during the hearing, I questioned the Applicant’s Counsel as to the background to the Applicant’s adoption of essentially the same trade mark, she was without further instructions.

4. I have accordingly, and within the limits of my powers in this regard, informed myself of that matter.  It would seem that in spite of the longevity of the “INDIAN” name as a USA motorcycle marque, ownership of the “INDIAN” name and production of “INDIAN” branded motorcycles has been a colourful story.  Further, although in the past “INDIAN” “Chief” motorcycles were made and sold, a “CHIEFTAIN” model motorcycle was first launched in 2014 as part of a push to revitalize the marque.  I was unable to ascertain when that model was first advertised or sold in Australia but it would seem to have been no earlier than 2014.

5. That launch postdates the Applicant’s adoption and use of the Trade Mark by some decades.  To the extent that the evidence shows use, or preparations for use, of the Trade Mark on motorcycle side-cars, the Applicant’s launch of “CHIEFTAIN” motorcycles also follows later in time to the Opponent’s activities in relation to use of the Trade Mark on goods connected with motorcycles. 

6. I have no details of the Applicant’s preparations to enter the Australian market with its “CHIEFTAIN” motorcycle but the Applicant’s expressed concern for public confusion arising from continuation on the Register of the Trade Mark is an apprehension of confusion which the Applicant may have brought on itself.

7. In exercising the discretion given to the Registrar by section 101 I am mindful that there is no evidence that the Opponent has used or intended to use the Trade Mark on “automotive vehicles” and there is no evidence of use or intended use of the Trade Mark on “spoilers for automotive vehicles” separate from spoilers which are an integral part of utility vehicle canopies.

8. Nonetheless, as mentioned earlier, a relevant factor in the exercise of that discretion is whether canopies for utility vehicles and side-cars for motorcycles are similar goods to the Registered Goods for the purposes of section 101(4) of the Act. In Pioneer Computers Australia Pty Limited v Pioneer KK [2009] FCA 135, Bennett J observed at 167:

   By amendment in 2006, s 101(4) was added to provide that without limiting the matters that the Registrar may take into account in deciding under s 101(3) not to remove a trade mark from the Register, the Registrar may take into account whether the trade mark has been used by the registered proprietor in respect of (a) similar goods or closely related services; or (b) similar services or closely related goods. …

9. To restate matters, the Registered Goods are automotive vehicles and spoilers for automotive vehicles.  The questions are whether:

   ·     a utility vehicle canopy with a spoiler is similar to a spoiler for an automotive vehicle;

   ·     a utility vehicle canopy is similar to an automotive vehicle; and

   ·     a motorcycle side-car is similar to an automotive vehicle.

10. Section 14(1) states that, for the purposes of this Act, goods are similar to other goods, (a) if they are the same as the other goods, or (b) if they are of the same description as that of the other goods.

11. None of the compared goods are the same. The phrase, “of the same description”, is not defined in the Act but is well-developed by case law and the accepted test is to consider the respective nature of the goods, including the origin and characteristics, their uses, including their purpose, and the trade channels through which the goods move to the point of sale.[13]

    [13] See, generally, Jellineck’s Application (1946) 63 RPC 59, John Crowther & Sons(Milnsbridge) Limited’s Application (1948) 65 RPC 369; Reckitt & Colman(Australia) Limited v Boden (1945) 70 CLR 84 and Southern Cross Refrigerating Company v Toowoomba Foundry Pty Limited 1A IPR 465).

12. There is no single meaning of the word “canopy” but when understood in the context of a utility vehicle it assumes a meaning which makes it plain that these goods, even when incorporating a spoiler, are essentially different in nature and purpose to spoilers themselves which all perform an aerodynamic function of one kind or another.  Accordingly, I find that a utility vehicle canopy with a spoiler is not similar to a spoiler for an automotive vehicle.

13. On the other hand, I find that when the relevant test is applied,[14] a utility vehicle canopy is similar to an automotive vehicle and a motorcycle side-car is similar to a motorcycle (being an automotive vehicle). 

    [14] In addition to the factors mentioned, I add that an added consideration taken into account by the courts is whether one good is a component part of the other good, especially where the former has no use otherwise.

14. It might be said that section 101(4) could influence me to preserve the registration for goods in respect of which there is manifestly no intention to use the Trade Mark. However, there is nothing in section 101 that says there must be an intention to use the Trade Mark on the Registered Goods. It might appear odd that a provision would allow the discretion to be exercised without such an intent given the requirement of that intention when making the application for registration in the first place but it is to be remembered that the discretion, and in particular section 101(4), also applies to removal applications made under section 92(4)(a). If that ground is made out, one thing that has been established is that the owner had no intention to use the trade mark at the filing date. It follows that section 101 contemplates the absence of intention to use a trade mark in connection with the registered goods.[15]

    [15] The Federal Court opined in Pioneer Computers Australia Pty Limited v Pioneer KK, op.cit., that the addition of s.101(4) during the 2006 amendments added nothing not already understood. In that regard it is worth recalling that under the Trade Marks Act 1955, one effect of “association” of trade marks was that one registered mark might save an associated mark from revocation for non-use.

15. All matters taken into account, I am not satisfied that it is reasonable to preserve the registration in respect of “spoilers for automotive vehicles” but I have exercised my discretion to allow the Trade Mark to remain on the Register in respect of “automotive land vehicles”.  Arguably “automotive vehicles” is a broader term than “automotive land vehicles” and I do not find reason for wider protection than “automotive land vehicles”.  

    Decision

16. Subsection 101(1) provides:

    101Determination of opposed application—general

    (1)Subject to subsection (3) and to section 102, if:

    (a)the proceedings relating to an opposed application have not been discontinued or dismissed; and

    (b)the Registrar is satisfied that the grounds on which the application was made have been established;

    the Registrar may decide to remove the trade mark from the Register in respect of any or all of the goods and/or services to which the application relates.

17. Having regard to the reasons given herein my decision is to remove the Trade Mark from the Register in respect of “spoilers for automotive vehicles”.  Having regard to that decision, to my findings in paragraph 50 above, and to redundancies in the specification of the registration, the Register should be amended to limit registration 1252861 to: “Automotive land vehicles”.

18. This amendment should be made not less than one month from the date of this decision.  If the Registrar has been served with a notice of appeal before that time, I direct that amendment shall not occur until either the appeal is withdrawn or discontinued.  Otherwise the disposition of the registration should be in accordance with the Court’s order or direction.

    Costs

19. Costs generally follow the cause but I find that both parties have had a measure of success and I order that they bear their own costs in this matter.

    Debrett G. Lyons

    Hearing Officer

    Trade Marks Hearings

    27 September 2016