Kennards Hire Pty Limited

[2012] ATMO 39

TRADE MARKS ACT 1995

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

Re:Trade mark application number 1357551(16, 35, 37, 39, 40, 41, 43, 44) - MAKE YOUR JOB EASY! - in the name of Kennards Hire Pty Limited.

Delegate:

Iain Thompson

Representation:

Applicant: Lisa Egan of Middletons

Decision:

2012 ATMO 39

s 33 proceedings – s41 – slogan not inherently adapted to distinguish – s41(6) – evidence given little weight – applicant has not established that trade mark on its own did distinguish the designated goods and services – application rejected.

Background

1. These are proceedings under section 33 of the Trade Marks Act 1995 (‘the Act’) concerning an application by Kennards Hire Pty Limited (‘the applicant’) to register a trade mark (‘the Trade Mark’) current details of which appear below:

Application No: 1357551

Priority Date:  21 April 2010

Goods/Services:              Class 16: All goods in this class, including but not limited to printed matter and electronic printed matter

Class 35: All retail and wholesale services in this class including the provision of such services online

Class 37: Rental and hire services including but not limited to rental and hire services for equipment, machinery, tools and apparatus, lighting apparatus, barriers, including the provision of such services online

Class 39: Rental and hire services including but not limited to rental and hire services for vehicles, trailers, skips, apparatus and storage space, including the provision of such services online

Class 40: Rental and hire services including but not limited to rental and hire services for generators, pumps, power equipment and related apparatus, including the provision of such services online

Class 41: Rental and hire services for all goods covered by this class, including but not limited to rental and hire services for events, including, but not limited to equipment, furniture and audio visual apparatus, including the provision of such services online

Class 43: Rental and hire services for all goods covered by this class, including but not limited to rental and hire services for temporary structures and portable buildings, including the provision of such services online

Class 44: Rental and hire services for all goods in this class, including but not limited to rental and hire services for sanitation facilities, including the provision of such services online

Trade Mark:  MAKE YOUR JOB EASY!

2. I note that the above specification of goods and services (‘the Specification’) is problematical and I will address this issue later in these reasons.

3. In her first report the examiner of trade marks recited a ground under subsections 41(2) and 41(5) of the Act for the rejection of the Trade Mark stating that:

Your trade mark consists of the words MAKE YOUR JOB EASY, [sic] which, when applied to the applicant’s services, indicate that provided goods and services make the consumer’s job easy so it requires no great labour, effort or care.

Other traders should be able to use the words Make Your Job Easy [sic] in connection with goods or services similar to yours.[1]

[1] I note that the examiner does not affix the exclamation mark to the words in the trade mark but I do not consider that anything turns on this.

4. The applicant has filed several rounds of submissions and tendered evidence of the use of the trade mark but the examiner maintained the ground for rejection.  As the matter reached an impasse and, as the examiner foreshadowed an initiation of the formal process of rejection, the applicant requested to be heard.

5. As a delegate of the Registrar of Trade Marks, I heard the submissions of the applicant by teleconference in Canberra on 9 December 2011.  Ms Lisa Egan of Middletons, Melbourne, represented the applicant.

6. It is convenient to address the issues in the following order:

.the evidence,

.the submissions,

.the law,

.discussion and decision

The evidence

7. The examiner of trade marks based the ground for rejection on the ordinary meaning of the expression MAKE YOUR JOB EASY.  In order to facilitate this discussion I have researched whether that expression is in common use.  A search on the advanced edition of the Google® Search Engine, using the parameters: exact phrase “make your job easy” occurring without the word “Kennards” gives “about 1,960,000 results”.  If the search is restricted further to: exact phrase “make your job easy” in the domain “.au” occurring with the words ‘power OR tools’ and without the word “Kennards”, the result is restricted to “about 224,000” hits.  The expression MAKE YOUR JOB EASY is thus one in common use and the ‘hits’ include the following within Australia:

Automotive Specialty Tools

Gasweld you can buy quality automotive tools to repair, adjust, or bleed brakes. We also ... This is where Gasweld has compiled a range of specialist automotive tools to make your job easy. And the ... $55.00. Power Grip Extr

Welder Hire Perth. Western Australia

) Hire

We have basic stick & arc welders for hire, mig welders & engine powered ... the necessary safety equipment & welding consumables to make your job easy.

Midcoast Hire

It1/midcoast-hire/

Make your job easy. Hire the right tool or equipment for your project. All of our hire equipment is in ... Power Tools and Welders. PLEASE GIVE US A CALL ...

Helpful Hints - Kerrs Northside Hire Pty Ltd

Building and Construction, Concrete Tools, Demolition Saws, Building and Construction, ... those old character floors, with hints & tips that will make your job easy.... If Access equipment is being used near power lines please read the No Go ...

Australian Tree Climbing Gear And Rope Access Equipment

pruners are designed to make your job easy. Their powerful blades cut limbs up ... The Marvin PH-9 has a double pulley design for extra leverage and cutting power. The Marvin PH-2 features a ... Fred Marvin Tool Holders. Categories ...

HP StorageWorks Ai0600 - Storage - Hardware - Reviews

m.zdnet.com.au/hp-storageworks-aio600-339280196.htm

16 Aug 2007 - The StorageWorks Ai0600 will make your job easy if you need to migrate an ... can be achieved without tools, and the workmanship and finish is excellent. ... In the event of power failure, this is protected by a backup battery to ...

Blocked Toilet I

blockeddrainsinmelboume.com.au/blocked-toilet/

... in advance various useful hardware tools which could make your job easy. .... do projects that r, for instance video editing and enhancing.

8. I forwarded the research results to the applicant to afford it an opportunity to comment on them.  I will discuss the applicant’s response under the heading ‘The Submissions’, below.

9. The applicant’s evidence of the use of the Trade Mark is a statutory declaration by Maurice Chester who is the Chief Financial Officer of the applicant and who, at the time of making the declaration, had held that position for twelve months.

1. In his declaration Mr Chester defines the Specification as being the ‘KH Services’ thus signifying that every reference thereafter in the declaration to the expression ‘KH Services’ refers to all of the goods and all of the services listed within the Specification.  This definition is the source of confusion and ambiguity as I will explain later in these reasons.

2. Mr Chester declares that the applicant, “commenced in 1947 when Walter Kennard first established a business trading under the name ‘Kennards Hire’ that provided equipment hire services in New South Wales.  The applicant was registered as a company on 14 June 1979.  Since 1947 to the present day, the applicant has been in the business of hiring equipment, machinery, tools, vehicles, event equipment and related facilities hire and temporary structures for tradesman and the do-it-yourself trade.”

3. The above goods which the applicant states that it hires through its business are very much more restricted than is claimed within the Specification.  Further, Mr Chester does not claim, above, that the applicant performs any retail services at all, let alone its claim in Class 35 for, “All retail […] services in this class including the provision of such services online”.  This stands in contrast with Mr Chester’s statement at [13] of his declaration that, “Since 1997, the applicant has promoted, advertised, marketed, offered and provided the KH Services by reference to the Trade Mark via a network of outlets that has grown to presently over 90 outlets located throughout Australia (with the exception of the Northern Territory).”  Mr Chester, it will be recalled, has defined the KH Services as being all of the goods and services within the Specification and thus additionally claims that all of the goods and all of the services within the scope of the Specification are promoted, advertised, marketed, offered and provided by reference to the Trade Mark through the applicant’s outlets.

4. Read at its broadest, therefore, Mr Chester at [13] of his declaration claims that the applicant used the Trade Mark in relation to the sale or hire of equipment ranging from thimbles and sewing machines to jumbo jets and an extensive range of retail services such as butchers’ shop services, department store services, supermarket services and clothing store services.  This claim apparently contradicts Mr Chester’s earlier claim that the applicant has only hired “equipment, machinery, tools, vehicles, event equipment and related facilities hire and temporary structures for tradesman and the do-it-yourself trade”.  The declaration is, in this regard, beset with uncertainty as to its import.  This perception must affect the weight that I can afford it.

5. Mr Chester goes on to state, “Since 2000, the applicant has also promoted, advertised, marketed, and offered the KH Services by reference to the Trade Mark via the internet from a website located at >

   I have inspected the website and found that the equipment offered on the website for hire falls into the following categories, ‘Access Equipment, Air Compressors and Tools, Brick, Tiling and Paving, Cleaning and Floor Care, Compactors and Rollers, Concrete, Earthmoving, Electric Tools, Entertaining and Events, Groundcare, Heating, Ventilating and Cooling, Jackhammers and Breakers, Ladders and Trestles, Landscaping and Gardening, Lifting, Lighting, Materials Handling, Nailing, Stapling and Fastening, Painting and Decorating, Plumbing, Pressure Cleaners, Pump and Power Division, Saws, Scaffolding, Site Equipment, Traffic Control Division, Trailers and Vehicles,[2] Welding.’  There are no goods available for purchase over the Internet on the applicant’s website and it is not obvious to me why the applicant should claim that there are.  Neither is there any apparent foundation on the website to support the applicant’s claims to have used the Trade Mark in relation to all of the goods and services which Mr Chester identifies as being the KH Services.

   [2] These are small utility vehicles and light trucks.

6. Similar reservations apply to the following passages in Mr Chester’s declaration:

   The Trade Mark was selected as an appropriate name for the KH Services in approximately 1997 for the following reasons:

   (a)         the Trade Mark is simple and catchy;

   (b)         the Trade Mark is representative of the applicant’s aim to provide up-to-date, innovative advice in relation to equipment hire services through a wide network of conveniently located outlets; and

   (c)          the Trade Mark provides the applicant’s customers with the confidence to commence and complete projects.

   Use of the Trade Mark in relation to KH Services

   The first incidence of use of the Trade Mark by the applicant was in New South Wales in 1997. Since that date the reliance and use of the Trade Mark in relation to the KH Services has expanded significantly, to the extent where the Trade Mark has been in use substantially throughout Australia, with the exception of the Northern Territory.

   The KH Services are actively promoted by reference to the Trade Mark at each of the applicant’s outlets and online at the KH Website.

   The Trade Mark has been used and promoted extensively throughout New South Wales, Victoria, Queensland, the Australian Capital Territory, South Australia, Western Australia and Tasmania by way of the following examples:

   (a)         at the KH Website since early March 2000. Attached and marked “Exhibit A” are historical printouts from the KH Website which prominently display the applicant’s Trade Mark;

   (b)         at the current KH Website, prominently displayed in the top banner of each webpage so that it appears at the top of each page no matter which page users choose to navigate to within the KH Website. Attached and marked “Exhibit B” are printouts from the KH Website which prominently display the applicant’s Trade Mark;

   (c)          on the applicant’s business cards. Attached and marked “Exhibit C” is a copy and an original example of the applicant’s business cards bearing the Trade Mark;

   (d)         on the applicant’s stationery. Attached and marked “Exhibit D” is a copy of the applicant’s letterhead which bears the applicant’s Trade Mark;

   (e)         on corporate materials advertising the KH Services. Attached and marked “Exhibit E”:

   (i)           are copies of the applicant’s “Tool Talk” magazines from 2008, 2009 and 2010, which are available to download from the KH Website;

   (ii)          is a copy of the applicant’s current equipment hire catalogue, which is available from the applicant’s retail outlets or online at the KH Website (at which the Trade Mark features at the bottom of the screen no matter which page of the catalogue a user navigates to);

   (iii)         is a copy of the applicant’s branding guide, a with compliments slip and document folder which all bear the Trade Mark; and

   (iv)        are extracts from the and showing use of the Trade Mark by the applicant in sponsorship materials;

   (f)          copies of advertisements placed online at internet based directories including at hirelistdirectory.com, and cairns.yalwa.com.au. Attached and marked “Exhibit F” are copies of print outs from these websites bearing the Trade Mark;

   (g)         on the applicant’s corporate uniforms. Images of the applicant’s employees wearing corporate uniforms bearing the Trade Mark are contained in Exhibit E above;

   (h)         on print media used by the applicant to advertise the KH Services. Attached and marked “Exhibit G” are copies of print media advertising used by the applicant;

   (i)           on flags and signage displayed outside the applicant’s premises. Attached and marked “Exhibit H” is a representation of one of the applicant’s tear drop flags;

   (j)          in radio advertising used to promote the KH Services. Attached and marked “Exhibit I” is a compact disc containing examples of radio advertisements which use the Trade Mark to promote the KH Services;

   (k)         in the Yellow Pages Directory. Attached and marked “Exhibit J” is the applicant’s advertisement for Hire-Builders’, Contractors’ & Handyman’s Equipment in the 2007 Yellow Pages Directory;

   (l)           in television advertising used to promote the KH Services. Attached and marked “Exhibit K” is a DVD containing an example of a television advertisement which uses the Trade Mark to promote the KH Services;

   (m)        at social media  websites such as Facebook ( and YouTube and online media websites such as Do It TV ( and

   (n)         the Trade Mark has been extensively used in all of the applicant’s radio advertising since 1997 incorporated in the applicant’s “jingle”.

   In light of the above information I believe that the KH Services associated with the Trade Mark have developed a substantial reputation within the equipment hire industry throughout Australia and that the Trade Mark has become distinctive of the KH Services.

   I believe that as a consequence of the increasing sales and advertising and promotion of the KH Services associated with the Trade Mark, the Trade Mark is likely to become progressively more distinctive within the next 1 to 2 years. [Stress added]

7. Mr Chester gives promotional and turnover figures relating to the Trade Mark at paragraph 20 of his declaration and states at paragraph 21, “The KH Services relevant to the Trade Mark total approximately 100% of the total revenue of the applicant for the periods above.”

8. I note that the Trade Mark is used with the applicant’s ‘house’ mark which appears below:

As this is so, it is not possible to ascribe a particular portion of the total revenue referred to by Mr Chester to services offered under the Trade Mark when used on its own.

The Submissions

1. Ms Egan argued that the presumption of registrability should work in the applicant’s favour. Ms Egan drew my attention the provisions of sections 33 and 41 of the Act and to the following judicial statements:

   Section 33 imposes upon the registrar and the court, on appeal from the registrar, an obligation to accept the application unless satisfied either that the application has not been made in accordance with the Act or that there are grounds for rejecting it. The decision to reject an application regularly made must now be based upon positive satisfaction that a ground for rejecting it is made out.[3]

   [and]

   [I]t is necessary to bear in mind that this trade mark is still at the registration stage. It enjoys the benefit of the presumption of registrability mandated by s33. To the extent that critical criteria upon which registration might be rejected are in doubt, the application should be accepted. Closer adversarial scrutiny may occur in opposition:[4]

   [3] Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020; [1999] FCA 1020; (1999) 93 FCR 365; (1999) 45 IPR 411; [1999] AIPC 91-499 (‘Woolworths’).

   [4] Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273; (2002) 122 FCR 494; 56 IPR 30; [2002] AIPC 91-817 (‘Kenman’)

2. Ms Egan also drew my attention to the standard tests for determining the inherent adaptability of a trade mark to distinguish the goods or services of one trader from the similar goods of another trader and how these are moderated by the process imposed by section 41 of the Act as explained by Branson J in Blount Inc v Registrar of Trade Marks [1998] FCA 440; (1998) 83 FCR 50; (1998) 40 IPR 498 (‘Blount’).  In Blount Branson J also referred to the word ‘satisfied’ within sections 33 and 41 of the Act:

   Each of ss33(1) and 41 involves the concept of the registrar being: “satisfied”. Where the Act requires the registrar to be “satisfied” of any matter, it is to be understood as requiring that he or she be persuaded of the matter according to the balance of probabilities: Rejfek v McElroy (1965) 112 CLR 517 at 521. That is, that the registrar be persuaded, having given proper consideration to those factors and circumstances that the Act requires him or her to give consideration to, that such matter is more probable than not.

3. Ms Egan submitted that trade marks which have been denied the benefit of the presumption of registrability under s33 because they completely lack inherent adaption to distinguish, “include MINT SLICE[5] for biscuits and CRANBERRY CLASSIC[6] for fruit juice. The applicant submits that the Trade Mark does not fall into the same category.  As observed by Stone J in Kenman at [145]:”

   Signs that are descriptive of the character or quality of the relevant goods or which use a geographical name in connection with them cannot be inherently distinctive because the words have significations or associations that invite confusion and because registration of a trade mark using such words would preclude the use by others whose goods have similar qualities or which have a connection with the relevant areas. This concern is to any of the elements referred to in the definition of sign and involves the courts in policy considerations inherent in trade mark law.

   [5] Arnott’s Biscuits Limited, Re [1998] ATMO 29.

   [6] Ocean Spray Cranberries Inc v Registrar of Trade Marks [2000] FCA 177; (2000) 47 IPR 579; [2000] AIPC 37,137.

1. Ms Egan also referred to the following passage in Kenman at [147]:

   In my opinion it is the absence of these associations and significations that makes a sign inherently adapted to distinguish one trader’s goods from those of another. In other words the concept is negative not positive.

2. Ms Egan submitted that, in consequence:

   At best, the applicant accepts that the Trade Mark may allude to the nature of the Goods and Services, however, on the balance of probabilities the Examiner should have found that the Trade Mark is inherently adapted to distinguish the applicant’s Goods and Services from those of other traders. This is especially so given the kinds of trade marks which have been registered by the TMO which have more suggestive meanings and connotations than the Trade Mark has in and of itself.

   Consequently the Trade Mark should have been accepted under section 41(3) of the Act.

3. Concerning the research which I forwarded to the applicant, Ms Egan submits:

   In the Applicant's submission, the results in the Google search results enclosed with your letter which were not connected with the Applicant, evidence descriptive uses of the phrase "make your job easy". None of the organisations shown in these searches use the phrase as a trade mark in the requisite sense contemplated by sections 41(2) and (3) of the Trade Marks Act 1995 (Cth).

   We enclose the first page of Google search results for a search performed for the terms [hire "make your job easy"], limited to pages from Australia and note the following:

   (a)         the first "organic" search result is for the Applicant's website;

   (b)at least 7 of the search results relate to the Applicant's business or the Trade Mark and the services to which it relates; and

   (c)use of the words MAKE YOUR JOB EASY by other traders in the organic search results is in a descriptive manner and does not constitute use of a trade mark in the requisite sense.

   We enclose the first page of Google search results for a search performed for the terms [hire "make your job easy"], not limited to pages from Australia and note the following:

   (a)the first "organic" search result is for the Applicant's website;

   (b)at least 7 of the search results relate to the Applicant's business or the Trade Mark and the services to which it relates; and

   (c)use of the words MAKE YOUR JOB EASY by other traders in the organic search results is in a descriptive manner and does not constitute use of a trade mark in the requisite sense.

The Law

1. Section 41 of the Act provides:

   Trade mark not distinguishing applicant’s goods or services

   41.(1) For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant.

   Note 1:  For applicant and predecessor in title see section 6.

   Note 2:  If a predecessor in title had authorised another person to use the trade mark, any authorised use of the trade mark by the other person is taken to be a use of the trade mark by the predecessor in title (see subsection 7(3) and section 8).

   (2) An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons.

   Note:  For goods of a person and services of a person see section 6.

   (3) In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.

   (4) Then, if the Registrar is still unable to decide the question, the following provisions apply.

   (5) If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so distinguishing the designated goods or services:

   (a) the Registrar is to consider whether, because of the combined effect of the following:

   (i) the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;
   (ii) the use, or intended use, of the trade mark by the applicant;
   (iii) any other circumstances;

   the trade mark does or will distinguish the designated goods or services as being those of the applicant; and

   (b) if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons; and
   (c) if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons.

   Note 1:  For goods of a person and services of a person see section 6.

   Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

   (6) If the Registrar finds that the trade mark is not inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:

   (a) if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
   (b) in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.

   Note 1:  Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:

   (a)  the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or

   (b)  the time of production of goods or of the rendering of services.

   Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

2. As Ms Egan observed, the operation of section 41 was discussed in Blount by Branson J:

   Subsections (3) to (6) of s 41 of the Act are designed to control the process by which the Registrar is to reach a conclusion as to whether the trade mark for which registration is sought is capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered (“the designated goods or services”). If the trade mark is not so capable, the application for its registration must be rejected (s 41(2)). Subsection (3) requires the Registrar first to “take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons”. Having taken such matter into account, it is theoretically open to the Registrar to conclude:

   (a) that the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons and capable, on that basis alone, of so distinguishing the designated goods or services; or

   (b) that the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons; or

   (c) that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons, but there is uncertainty, on that basis alone, that the trade mark is actually capable of so distinguishing the designated goods or services.

   The structure of s 41 of the Act dictates that if the Registrar reaches conclusion (a) above, then he or she will decide the question whether or not the trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons by reaching the answer that it is so capable by reason of its inherent adaptability to distinguish (s 41(2) and (3)). The Registrar will, in such circumstances, be required, by reason of the terms of s 33(1) of the Act, to accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application.

   If the Registrar reaches conclusion (b) or (c) above, he or she is, within the meaning of s 41(4) “unable to decide the question”. That is, he or she is unable, simply by taking into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services, to answer the question whether or not the trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons.

   If the Registrar reaches conclusion (b) above, then the provisions of paragraphs (a) and (b) of s 41(6) are brought into operation. If the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date of the application, the trade mark does distinguish the designated goods or services as being those of the applicant, the Registrar will not reject the application pursuant to s 41(2). The Registrar will, in such circumstances, accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application (s 33(1)). If the applicant fails to establish that because of the extent to which the applicant has used the trade mark before the filing date of the application, the trade mark does distinguish the designated goods or services as being those of the applicant, the Registrar must reject the application pursuant to s 41(2).

   If the Registrar reaches conclusion (c) above, then the provisions of paragraphs (a), (b) and (c) of s 41(5) are brought into operation. If the Registrar, having considered the combined effect of the matters listed in subparagraphs (i), (ii) and (iii) of s 41(5)(a), is satisfied that the trade mark does or will distinguish the designated goods or services as being those of the applicant, he or she will not reject the application pursuant to s 41(2). The Registrar will, in such circumstances, accept the application unless he or she is satisfied that the application has not been made in accordance with the Act, or that there are grounds, independent of capacity to distinguish, for rejecting the application (s 33(1)). If the Registrar, having considered the combined effect of the matter listed in subparagraphs (i), (ii) and (iii) of s 41(5), is not satisfied that the trade mark does or will distinguish the designated goods as being those of the applicant, the Registrar must reject the application (s 41(2)).

3. The first step is to decide in terms of subsection 41(3) the question as to whether or not the Trade Mark is capable of distinguishing the designated goods or services from the goods or services of other persons.  This is achieved by taking into account the extent to which the Trade Mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.

4. The classic test for the inherent adaptation of a trade mark is that stated by Kitto J in Clark Equipment Co. v Registrar of Trade Marks (1964) 111 CLR 511 (‘Michigan’) at 513:

   The applicant’s chance of success in this respect (ie. in distinguishing his goods by means of the mark, apart from the effects of registration) must, I think, largely depend upon whether other traders are likely, in the ordinary course of their businesses and without any improper motive, to desire to use the same mark, or some mark nearly resembling it, upon or in connection with their own goods.  The interests of strangers and of the public are thus bound up with the whole question, as Hamilton L.J. pointed out in the case of R.J. Lea, Ltd. (30 RPC 216 at 227); but to say this is not to treat the question as depending upon some vague notion of public policy; it is to insist that the question whether a mark is adapted to distinguish be tested by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives — in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess — will think of the word and want to use it in connection with similar goods in any manner which would infringe a registered trade mark granted in respect of it.

5. This test was also put by Kitto J in F H Faulding & Co Ltd v Imperial Chemical Industries &c. Ltd [1965] HCA 72; (1965) 112 CLR 537 at paragraph 6 as follows:

   This might have been said with the general principle in mind that the question to be asked in order to test whether a word is adapted to distinguish one trader’s goods from the goods of all others is whether the word is one which other traders are likely, in the ordinary course of their businesses and without any improper motive, to desire to use upon or in connexion with their goods: Registrar of Trade Marks v. W. & G. Du Cros Ltd. (1913) AC 624, at pp 634, 635; Eclipse Sleep Products Inc. v. The Registrar of Trade Marks [1957] HCA 86; [1957] HCA 86; (1957) 99 CLR 300, at p 310; Clark Equipment Co. v. Registrar of Trade Marks [1964] HCA 55; (1964) 111 CLR 511.

6. I will add that I do not consider that the presence of the exclamation mark within the Trade Mark alters my considerations.  Potential infringement by a trade mark substantially identical with or deceptively similar to the trade mark is relevant to a consideration of inherent adaptation to distinguish (Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273; (2002) 122 FCR 494 applied at [95] per Lindgren J and at [161] per Stone J). Use by another trader of the expression without the exclamation mark should potentially infringe any registration granted in which the expression contains the exclamation mark as, in the context of this discussion, the lack of the exclamation mark does not affect the Trade Mark’s identity.

Discussion

1. I consider that it is important to approach the question of the inherent adaptation of the words MAKE YOUR JOB EASY! in relation to the goods and services in the Specification with the precept firmly in mind that the assessment of ‘inherent adaptation’ does not necessarily reference any descriptive quality within the Trade Mark. Whilst the word ‘descriptive’ was contained within section 24 of the Trade Marks Act 1955, it has no place within section 41 of the current Act (and, in any event, trade marks which were not descriptive but which lacked any inherent adaptation were not registrable under the 1955 Act).[7]  The fact that a trade mark is ‘descriptive’ is but one of the reasons that it might lack inherent adaptation to distinguish.  A moment’s reflection reveals that a trade mark consisting of one or two alphabetical letters, a common surname, shape, scent, place of manufacture, or a colour, does not necessarily refer in any way to the character or quality of goods or services but might lack inherent adaptation to distinguish the goods or services if it be one that other traders might ordinarily and without improper motive want or need to use on their goods or services.

   [7] Oxford University Press v Registrar of  Trade Marks [1990] FCA 175; (1990) 24 FCR 1.

2. Thus, while Ms Egan submits (with my stress added) that the “applicant accepts that the Trade Mark may allude to the nature of the Goods and Services,” and, “This is especially so given the kinds of trade marks which have been registered by the TMO[8] which have more suggestive meanings and connotations than the Trade Mark has in and of itself,” this is not necessarily a relevant test of inherent adaption no matter how beguiling that suggestion might be.

   [8] As regards the implication that I might be guided by the state of the Register see Ocean Spray Cranberries Inc v Registrar of Trade Marks [2000] FCA 177; (2000) 47 IPR 579; [2000] AIPC 37,137 at paragraph 35 and British Sugar Plc v James Robertson & Sons Ltd [1996] RPC 281 at page 305.

3. The explanatory notes to section 41 record that:

   Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:

   (a) the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or

   (b) the time of production of goods or of the rendering of services.

4. The word ‘mostly’ within the explanatory notes indicates that what follows is not an exhaustive list (and is one that includes, in any event, signs which are not ‘descriptive’).  Thus the words of Bennett J in Unilever Australia Ltd v Societe De Produits Nestle SA [2006] FCA 782; 154 FCR 165; (2006) 69 IPR 255 (‘Go On…’ trade mark) at [33] are apposite:

   An expression may not in any way be descriptive of any of the characteristics of a product but it does not necessarily follow that it is in some way distinctive of the product so as to distinguish it from the products of other traders.

5. The fact that a trade mark is a slogan does not affect the assessment of its inherent adaption to distinguish the applicant’s goods or services.  As Ms Egan submitted, Bennett J in Go On…, said at [15] in respect of slogans:

   Slogans are composed of more than one word and can include phrases such as “go on”. They are commonly used in the course of trade and advertising. There are numerous examples of phrases and exhortations that can obtain distinctiveness. No different test is applied in assessing slogans as trade marks or in determining their inherent capacity to distinguish. Slogans can be registered as trade marks if they are capable of distinguishing the applicant’s goods from those of other traders.  The increasing use of slogans in advertising and their use by traders as trade marks ... has broadened the ways in which distinctiveness can been acquired. In particular, it has led to the use of multiple trade marks, with distinctiveness being acquired by a slogan by use with another strong trade mark ... The use of a slogan in conjunction with a registered mark may lead, in time, to recognition by the public that separate use designates the origin of a product and distinguishes it from other products.

6. Bennett J, found that the trade mark ‘GO ON …’ lacked inherent adaptation to distinguish the goods under consideration in that matter.

7. The applicant has not here applied to register the Trade Mark in conjunction with its house mark: it has applied to register the Trade Mark standing on its own, without the benefit of the house mark to lend it its warmth.  It is on its own that the assessment must be carried out.

8. The references by French J to the presumption of registrability that lies within sections 33 and 41 of the Act in Woolworths and Kenman are balanced by those of Branson J in Blount concerning the assessment of inherent adaption to distinguish on the ‘balance of probabilities.’  That is, the Trade Mark is to be presumed to be registrable unless I am satisfied on the balance of probabilities that it lacks inherent adaptation to distinguish the goods and services of the applicant.

1. In my consideration, any suppliers of tools and equipment for hire would (without improper motive) want to extol the virtues of such services by stating that those tools and equipment ‘make the job easy’ for their potential customers.  There is much in the media currently which is pitched at both the home handyman and tradesmen.  Television programmes such as The Block, The Renovators and the various ‘makeover’ programmes stress the ease with which homeowners can take over the role of tradesmen and purchase or hire a range of tools to ‘make the job easy.’  This trend is exemplified by the examples of hire and retail shops which I have listed at paragraph 7, above, and which make fair use of the phrase only for the purpose of stating that the equipment that they hire or sell will ‘make the job easy’ to perform.  I consider that the search results, limited as they are by the constraints placed upon them, reflect a wide usage of the expression by retail and hire shops other than the applicant around Australia for the sake only of the expression’s ordinary meaning.

2. The applicant’s submissions that the instances of use of the expression MAKE YOUR JOB EASY by other traders within Australia are not trade mark uses in the “requisite sense contemplated by sections 41(2) and (3)” of the Act are not well put. The test is, rather, whether the Trade Mark is one which other traders will without improper motive want or need to use for the sake only of its ordinary signification.  If other traders were using the expression as a trade mark, the only significance of the Google® search results would be to establish that other traders regard the Trade Mark as potential trade mark material.

3. I consider that the inherent adaptation of the Trade Mark falls squarely at the lower end of those referred to in Go On… by Bennett J where at [37] she discussed and endorsed the approach taken in Australian and other Courts:

   In Austereo[9] the words “sounds different”, the proposed trade mark, had been used in combination with one of more Nova trade marks. Finn J observed that the “sounds different” formula when considered severally is made up of descriptive words that are commonplace in industry usage. The composite formula while not entirely devoid of inherent adaptation to distinguish, was ‘by no means sufficiently adapted to distinguish as to justify its being characterised as, of itself, being inherently adapted to distinguish’ (at [48]). Finn J rejected the submission that the words were an indirect evocative reference to an aspect of Nova’s radio broadcasts.

   [9] Austereo Pty Ltd v DMG Radio (Australia) Pty Ltd (2004) 209 ALR 93.

   In Top Heavy Pty Ltd v Killin (1996) 34 IPR 282, Lehane J considered the use of “Chill Out” as a trade mark in connection with Coca-Cola. His Honour drew a distinction between the Tub Happy Case where the phrase “Tub Happy” was held to have no particular meaning and was registrable and “Chill Out” which has a meaning. The question in Top Heavy was whether use on T-shirts indicated a trade origin rather than, or at least as well as, conveying some other message to the reader. His Honour observed that the question often arises as to whether a claimed trade mark is capable of being read as descriptive but that is not necessarily the question in all cases. There was no evidence that the phrase had acquired a secondary meaning. Lehane J concluded that the message was an exhortation to the reader, reinforced by certain images and an advertising message that Coca-Cola was a suitable medium or accompaniment of relaxation. It was not a message about trade origin.

   Some assistance can be gained from other jurisdictions where capacity to distinguish is relevant. The United Kingdom Trade Marks Act 1994 s 3(1)(b)–(d) provides that trade marks which are ‘devoid of any distinctive character’ cannot be registered, such as words that are purely laudatory or descriptive.

   HAVE A BREAK...HAVE A KIT KAT and HAVE A KIT KAT are registered trade marks in the United Kingdom. Nestlé sought to register HAVE A BREAK. The Court of Appeal found that HAVE A BREAK lacked inherent distinctiveness and approved the hearing officer’s conclusion that the mark would be ‘understood by consumers as an origin neutral invitation to consume a snack’ (Nestlé SA’s Trade Mark application (Have a Break) [2004] FSR 2 at 23).

   Robin Jacob QC in I CAN’T BELIEVE IT’S YOGURT Trade Mark [1992] 109 RPC 533 considered whether that phrase was one used or proposed to be used for the purpose of indicating a connection in the course of trade between the yoghurt and the applicants. He drew a distinction at 537, as in the Have a break case, between a phrase that is no more than an exhortation to buy, a phrase used ‘purely in an advertising sense and not in a trade mark sense at all’ and, for example, a trader’s name. He noted that in between there may be phrases which serve both functions, that is branding and as an advertising slogan. In those circumstances, intended use is relevant. Use of the slogan with another trade mark may indicate the mere advertising extreme but not necessarily. If used with no other name, it is more likely to be a true trade mark as there is no other indication of source of the goods. Such was the case with “I can’t believe it’s yogurt” and that was sufficient for Mr Jacob to conclude that the public would take the phrase as the brand name. He also concluded that there would be no interference with other traders in yoghurt.

   An applicant sought to register “Cycling IS...” in relation to “clothing, footwear and headgear” and “advertising, all relating to the cycling industry” (“Cycling IS...” Trade Mark Applications [2002] 37 RPC 729). There was no claim to distinctiveness through use prior to the date of the application. At [32] Geoffrey Hobbs QC observed:

   ‘There is a degree of foreseeability in the conclusion that a syntactically unusual juxtaposition of words in the nature of a lexical invention would not be understood purely descriptively by the relevant class of persons. There is likewise a degree of foreseeability in the opposite conclusion that a sign or indication would simply be perceived by such persons as a new form of description. The latter conclusion points to unregistrability.’

   “Cycling IS...” includes, of course, the reference to cycling. There, as in GO ON..., ‘[t]he ellipsis visibly (and when represented audibly by a pause) invites people to add meaning to the words’ (at [62]). The balance for registration purposes was, in Mr Hobbs’ opinion at 745, on one hand the fact that the sign is ‘cryptic to a degree which makes it more likely than not that they would carry connotations of trade origin’ and, on the other, that it is ‘visually and linguistically meaningful in a way which is more likely than not to relate the goods and services to the activity of cycling without also serving to identify trade origin’. He recognised at [72] that the treatment of the words was not unconventional and concluded at [73] in refusing registration, that the sign identified cycling for marketing purposes, which other bicycle retailers might wish to use.

   The European Court at First Instance considered “LOOKS LIKE GRASS...FEELS LIKE GRASS...PLAYS LIKE GRASS” in Fieldturf Inc v Office for Harmonisation in the Internal Market Case [2004] EUECJ T-216/02 and stated at [25]:

   ‘Registration of a trade mark which consists of signs or indications which are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use. However, a sign which, like an advertising slogan, fulfils functions other than that of a trade mark is distinctive...only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a difference commercial origin.’

   The trade mark was held at [29] to possess the necessary ‘minimum of distinctiveness’ but was also held merely to concern the properties of the goods, which describe the goods and do not immediately indicate their commercial origin.

   In the United States under the Lanham Act SS 67.763, slogans can be registered on the Supplemental Register even if they possess some descriptive meaning, as long as they possess some degree of distinctiveness. The trade mark “NO WORK...NO WASTE...GOOD TASTE” was held to be registrable for instant coffee because it possessed a degree of distinctiveness and ingenuity in phraseology as applied to the goods and so could distinguish them (re Hills Bros. Coffee Inc, 120 USPQ 537). In considering whether “MORE GUN FOR THE MONEY” could be registered in re O F Mossberg & Sons Inc, 175 USPQ 191, it was held that this was ‘a merely informational phrase...completely void of imagination’ which tells the purchaser that guns are being sold for less money than those of competitors. The Court was of the view that a laudatory expression ‘must have some degree of ingenuity or say something in a slightly different way from that expected to be said about a product’. In re Carvel Corporation, 223 USPQ 65, PO TM TAppBd, 1984, “AMERICA’S FRESHEST ICE CREAM” was not found to have any extra element or different twist or to consist of an unusual combination of words to enable the slogan to qualify for Supplemental Register registration. “THE BEST BEER IN AMERICA” was held to be unregistrable because it was ‘so highly laudatory and descriptive as to be incapable of acquiring distinctiveness as trademark’ (re Boston Beer Co., 198 F3d 1370 (Fed. Cir. 1999), 53 USPQ2d 1056 at 1058).

4. It appears to me that, within the context of the above discussion, the expression, MAKE YOUR JOB EASY! is a mere informational phrase of normal construction; it is one which is used frequently and prominently by other traders in an advertising sense; and, it is one which is most unlikely to be immediately perceived as an indication of commercial origin.

5. I conclude that the Trade Mark lacks any inherent adaption to distinguish the applicant’s goods and services and that the application for registration should be rejected in terms of subsection 41(6) of the Act.

Subsection 41(6)

Evidentiary Difficulties

1. There are two inter-related aspects to this matter which make the practical consideration and application of subsection 41(6) impossible.

2. The first aspect is a series of problems within the Specification.  While the applicant has offered to amend the Specification, the amendment would not resolve a further problem of how Mr Chester’s declaration interacts with the Specification; nor, in my consideration, are three of the necessary amendments allowable ones.

3. According to Mr Chester, the applicant has used the Trade Mark for the specifications, in Classes 41, 43, and 44: “Rental and hire services for all goods covered by this class”.  These claims and the specifications are problematic since there are no goods “covered by” Classes 41, 43, and 44.[10] Whilst I appreciate that there is obviously a problem with how the Specification has been drafted, it does not appear to me that the errors are capable of remediation under subsection 65(7) of the Act since the amendments would have the effect of extending the rights that (apart from the amendment) the applicant would have under the registration if it were granted. This is so since the Class 41, 43, and 44 specifications as they now read are, in essence, meaningless: because there are no goods in Classes 41, 43, and 44, the expositions following the word ‘including’ within the specifications are preceded by empty statements and cannot include anything.

   [10] These specifications are also in breach of Trade Mark Regulation 4.4(2) which states: “(2)  The expression ‘all goods’, ‘all services’, ‘all other goods’, or ‘all other services’ must not be used in an application for registration of a trade mark to specify the goods and/or services in respect of which registration is sought.”

4. The second aspect of this matter which makes the practical application of subsection 41(6) impossible is the extreme imprecision and generality of Mr Chester’s declaration. Whilst, again, I appreciate that the problems stem from the way that the declaration has been drafted rather than from any deliberation on Mr Chester’s part, the breadth, generality, improbability and inherent contrariety of the claims in the declaration stretch credulity and defy any attempt at a logical discussion, appreciation or application.

5. There are, for instance, two competing claims within Mr Chester’s declaration concerning the applicant’s use of the Trade Mark.

6. The first claim is that the Trade Mark has been used by the applicant in relation to services, being the hiring of, “equipment, machinery, tools, vehicles, event equipment and related facilities hire and temporary structures for tradesman and the do-it-yourself trade.”  That is the statement which I prefer as it conforms with both the corroborating matter attached to the declaration and my own observations of the world.  The second claim arises from the definition within the statutory declaration that ALL of the goods and services within the Specification are the ‘KH Services’ and Mr Chester’s subsequent declaration that, “Since 1997, the applicant has promoted, advertised, marketed, offered and provided the KH Services by reference to the Trade Mark via a network of outlets that has grown to presently over 90 outlets located throughout Australia,” and, “Since 2000, the applicant has also promoted, advertised, marketed, and offered the KH Services by reference to the Trade Mark via the internet from a website located at Whilst I do not prefer these statements as they appear to grow out of a drafting error, they are the ones which form the peg upon which the applicant appears to hang its hat.  However, these particular statements appear to me to be inherently improbable.  It could not be, for instance, that the applicant has (as relates to its Class 37 services) rented or hired out combine harvesters, or (as relates to its Class 39 services) rented out hearses or aircraft, or (as relates to its Class 40 services) rented or hired out industrial printing presses or chemical processing equipment – yet this is what is claimed within the declaration because those services all fall within the ambit of the claim.

7. In another instance, setting to one side the Class 16 non-compliance with Trade Mark Regulation 4.4(2), it appears improbable that the applicant has used its trade mark in respect any goods in Class 16, let alone ‘all goods’ within that Class as Mr Chester seemingly declares.  Mr Chester has attested in another part of the declaration to the applicant’s use of the trade mark on catalogues, stationery, business cards and the like – however, these are not goods which are sold to the public: the applicant’s catalogue is free.  Apart from the claims to have done so via the misapplication of the definition ‘KH Services,’ there is no suggestion in the declaration or on the applicant’s website that the applicant has sold, or offers for sale, any goods which are classified within Class 16.

8. It further appears improbable that the applicant sells B-Double trucks, sewing machines or jumbo jets, or retails cakes, pharmaceuticals, weaponry or telephone exchanges but the declaration, if read properly, claims that these goods are amongst those the applicant has sold (by its statement that the applicant has promoted, advertised, marketed, offered under the trade mark at its outlets in relation to ‘all retail services’ which are included within the services defined as being the ‘KH Services’).  Obviously, these examples might be criticised as being far-fetched but they are cited here as being illustrative of the difficulties in assessing the exact import of the declaration in relation to any of the services which the applicant might actually perform.

9. Accordingly, there are substantial problems in both weighting the declaration and deciphering it and its import in its interactions with the idiosyncratically drafted specifications of goods and services.

10. Once a ground for rejection has been found to exist under subsection 41(6), it falls to the applicant to satisfy the Registrar that the trade mark does distinguish the goods and/or services in respect of which registration is sought. Clearly, the declaration filed by the applicant (and its interactions with the specifications of goods and services) falls well short of achieving this.

Other difficulties

1. If the above difficulties with the applicant’s evidence are set to one side, there remain other significant problems with the application of subsection 41(6).

2. The words MAKE YOUR JOB EASY! have been used by the applicant such that they are invariably subservient to its house mark as it appears at paragraph 18 of these reasons or in the manner shown below:

1. The applicant does not use the Trade Mark on its own.

2. While the subservient matter in conjoint trade marks can and does occasionally become distinctive, or at least shows itself to be capable of becoming distinctive, it can suffer significant difficulties in doing so – unless it is a tag line which contains a powerful trade mark within it.  In Go On … Bennett J observed at [16]:

   The increasing use of slogans in advertising and their use by traders as trade marks, as well as the inclusion of colours, shapes, colours, tastes or smells and aspects of packaging in the Act, has broadened the ways in which distinctiveness can been acquired. In particular, it has led to the use of multiple trade marks, with distinctiveness being acquired by a slogan by use with another strong trade mark. There are examples of ‘brand cueing’ which exhibit similar language to GO ON... such as “Good on you mum Tip Top’s the One!” and “Anyhow... Have a Winfield”. The use of a slogan in conjunction with a registered mark may lead, in time, to recognition by the public that separate use designates the origin of a product and distinguishes it from other products.

3. Here, however, I note that the expression MAKE YOUR JOB EASY! is not used incorporated into a brand slogan or as brand cueing but is rendered separately from the brand or house mark, in different font – but is invariably used in conjunction with the house mark.  It never stands on its own as it does on the application form.  This is a significant difficulty for the applicant as I am asked to gauge the acquisition of distinctiveness of the Trade Mark as it appears on the application form.  This difficulty is confirmed by the revenue and advertising figures given by the applicant which are seemingly those, undifferentiated, for both its house mark and the Trade Mark.  Use, (no matter how extensive) does not, per se, equate to the acquisition of distinctiveness.  In Go On … at [36], Bennett J said, “Even where extensive use [of a slogan] is relied upon, care must be taken before concluding that substantial use has displaced the common meaning and has come to denote the mark of a particular trader, particularly where it has been used in conjunction with a trade mark.”

4. As far as the evidence relates to the use of any trade mark, the evidence (setting aside the difficulties with it) does not address the issue of whether the words MAKE YOUR JOB EASY! have on their own acquired a secondary meaning so as to indicate, in the particular context of their use in trade, only the goods and services of the applicant.

5. Although it is not determinative in any way, I observe that if the Trade Mark had acquired distinctiveness through use and if it indicated only the goods and services of the applicant, other traders would recognise this would feel constrained from using the words MAKE YOUR JOB EASY in relation to their own similar goods or services.  This has obviously not happened.

6. I consider that the words MAKE YOUR JOB EASY! will only be recognised as a tag line of a trade mark of the applicant if they appear as they are used: conjointly with the applicant’s house mark and filling only the role of an advertising puff. That outcome falls a long way short of qualifying the trade mark on its own for registration under subsection 41(6) no matter how much it is used in this manner.

Decision

1. Section 33 of the Act provides:

   Application accepted or rejected

   33.(1) The Registrar must, after the examination, accept the application unless he or she is satisfied that:

   (a) the application has not been made in accordance with this Act; or
   (b) there are grounds for rejecting it.

   Note:  For the grounds on which an application may be rejected see Division 2.

   (2) The Registrar may accept the application subject to conditions or limitations.

   Note:  For limitations see section 6.

   (3) If the Registrar is satisfied that:

   (a) the application has not been made in accordance with this Act; or
   (b) there are grounds for rejecting it;

   the Registrar must reject the application.

   (4) The Registrar may not reject an application without giving the applicant an opportunity of being heard.

   Note:  For applicant see section 6.

2. I reject application 1357551.

Iain Thompson

Hearing Officer

Trade Marks Hearings

19 April 2012