Knoll AG v American Home Products Corporation

[2002] ATMO 112

TRADE MARKS ACT 1995

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

Re:Opposition by Knoll AG to registration of trade mark application 796534(5) filed in the name of American Home Products Corporation.

Background

Trade mark application number 796534 was filed on 7 June 1999, by American Home Products Corporation, for the device trade mark depicted below:

for goods in class 5 described as: "Pharmaceutical preparations including hormonal pharmaceutical preparations".

The application is now proceeding in the name of Wyeth, ('the applicant'), a Delaware corporation.  It was accepted for registration and advertised in the Official Journal of Trade Marks on 20 January 2000.

On 10 April 2000, Knoll AG, ('the opponent'), filed a notice of opposition to the registration of the trade mark. Numerous grounds of opposition were listed but in the event only one ground was relied on at the hearing, that being under section 44 of the Trade Marks Act 1995 ('the Act').  That ground is based on the trade mark registration depicted below, of which the opponent is the owner.  It is registered for goods in class 5 described as:  "Pharmaceutical preparations and substances, sanitary preparations; dietetic substances adapted for medical use, food for babies".

The parties completed the evidence stages set out in the regulations.  Their evidence is as follows:

Opponent's evidence in support

Date Filed	Declarant	Description	Exhibits
23/10/00	Raymond John Edwards	Managing Director of Knoll Australia Pty Limited	RJE-1 RJE2

Applicant's evidence in answer

23/7/01	Egon E Berg	Vice President of American Home Products Corporation	EB-1 to - EB-5
18/7/01	Amanda Lee Caldwell	Solicitor at Spruson & Ferguson Patent & Trade Mark Attorneys	AM-1 AM2

Opponent's evidence in reply

27/11/01	Susanne Zimmermann	Junior Trade Mark Counsel of Knoll GmbH (formerly Knoll AG)	A-B-C
1/2/02	Robert Camfield	Finance Director of Abbott Australasia Pty Ltd	RC-1 RC-2

The applicant subsequently amended its goods to: "Prescription only hormonal pharmaceutical preparations".

The opponent requested a hearing and the matter came on before me, as a delegate of the Registrar of Trade Marks, in Sydney on 26 July 2002.  The opponent was represented by Mr Trevor Stevens of Davies Collison Cave, Patent and Trade Mark Attorneys and the applicant was represented by Mr Gerard Skelly of Spruson & Ferguson, Patent and Trade Mark Attorneys.

The Evidence

Mr Edwards declares that he has been associated with the opponent since 1996 but he has been actively involved in the manufacture and marketing of pharmaceuticals in Australia since 1962, and since 1979 he has been responsible for marketing the opponent's products in Australia.  He claims to have a good knowledge of the marketing and use of brand names for pharmaceuticals.  He asserts that the applicant's mark so resembles the opponent's mark that, in his opinion, there is a high likelihood of confusion within the trade and amongst the purchasing public.  This is especially likely to occur, he says, when the products are not displayed side by side.  He claims that many of the patients for whom the applicant's prescription goods are prescribed will be patients for whom the opponent's prescription goods would also be appropriate.  Additionally, he asserts, both the applicant's and the opponent's goods are likely to appear simultaneously in advertising promotions directed towards medical practitioners.  Mr Edwards says he considers that both trade marks convey the same idea or general impression, that is, both trade marks depict four-limbed characters in motion within a circular or oval shape.

Mr Edwards says that applications have been made to the Drug Safety and Evaluation Branch of the Australian Commonwealth Department of Health and Aged Care's Therapeutic Goods Administration ('TGA'), for the approval and registration of Knoll AG's pharmaceutical preparations under the trade mark.

In his evidence in answer, Mr Berg, who declares that he has worked for the applicant since 1966, states that the trade mark is used in the USA in conjunction with the company's house mark WYETH and also the particular brand of the product in question.  The applicant's trade mark, he declares, is intended to be used in Australia in respect of the company's PREMARIN family of trade marks, for hormonal preparations.  He claims that the opponent's trade mark is used or intended to be used with other word marks such as MERIDIA or REDUCTIL, for a weight reduction product.  Both the applicant's and the opponent's goods, he says, are prescription drugs, and for prescription purposes, the trade marks must be used in conjunction with words to identify the goods, and in these circumstances there is no likelihood of deception and confusion.  Mr Berg declares that the purpose, nature and uses of his company's goods are different from the opponent's goods.  He claims that the trade mark is intended to convey vitality and may be perceived as a pinwheel, a flower, or a dancing woman and that it creates a different impression from the opponent's trade mark.  He describes the opponent's trade mark as a stylised apple with the head, arms and body of the figure, within the mark, forming part of the apple shape.

The Caldwell declaration lists the results of a search of the Australian Trade Marks Office database, for trade marks consisting of or containing stick figure devices in class 5.  Ms Caldwell also declares that her firm instructed an investigator to carry out inquiries to ascertain if the opponent's trade mark was in use.  She declares that she was informed that a representative of the opponent informed the investigator that the opponent's trade mark was not in use.

Both the Edwards and Berg declarations refer to various opposition proceedings between the applicant and the opponent in relation to their respective trade marks in many countries.  Both parties have had decisions in their favour and according to the Berg declaration all decisions have been appealed by the unsuccessful party.

In her declaration, Ms Zimmermann lists those countries where the applicant's trade mark has been refused.  She also declares her belief that that the opponent's goods encompass those specified in the subject application and disputes the claim at paragraph 9 of the Berg declaration where he states that the respective goods of interest are not goods of the same description.  She avers that inquiries she has undertaken establish that there is an overlap between hormone replacement therapy and obesity treatment.  She further declares her belief that individual descriptions of trade marks have no bearing on the determination of whether or not the respective trade marks are deceptively similar.

Mr Camfield declares that he is aware that the opponent's trade mark has been in use since August 1998.  This appears to be in conflict with the Edwards declaration, which states that the opponent has made an application to the TGA for the approval and registration of pharmaceutical preparations under the trade mark, and the Caldwell declaration, which states that a representative of the opponent informed an investigator that the opponent's mark was not in use.  I place no reliance on this aspect of the Camfield declaration though, for reasons that follow, the issue is irrelevant.

Submissions

Submissions on behalf of the opponent.

Mr Stevens began by stating that in respect of the provisions of section 44 there were three issues he wished to canvass on behalf of the opponent. These were the onus on the opponent, the goods and the issue of deceptive similarity.

He noted that French J said in Registrar of Trade Marks v Woolworths Ltd 45 IPR at p413,

...there has been an important change in the law in that the onus is no longer, as it used to be, on the applicant to establish registrability of the proposed mark...

and at paragraph 45,

The position now is that the Registrar and the Court at first instance would need to be satisfied that there was a reasonable likelihood of deception or confusion before denying acceptance of the application for registration.

and at paragraph 46, His Honour continued,

The question for the Registrar and the Court is not whether consumers might be confused (in the sense of wondering about common origin or connection) but whether there is a reasonable likelihood that they will be confused.

Thus, he said, the opponent's responsibility is to establish a reasonable likelihood of deception and to positively satisfy the registrar that the ground relied upon has been made out.  He then turned to the issue of the goods.  Mr Skelly conceded that the applicant's goods are embraced by the goods of the opponent's registration and this matter was pursued no further.  Both representatives noted that the fundamental issue is whether the respective trade marks are substantially identical or deceptively similar to each other.

Mr Stevens submitted that the trade marks are substantially identical. However, I do not believe that this can be so.  The primary focus of Mr Stevens' submissions was on the matter of deceptive similarity and he cited the usual tests enunciated by Windeyer J in Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd (1961) 109CLR 407:

… On the question of deceptive similarity, a different comparison must be made from that which is necessary when substantial identity is in question.  The marks are not now to be looked at side by side.  The issue is not abstract similarity, but deceptive similarity.  Therefore the comparison is the familiar one of trade mark law.  It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's television exhibitions.

and also Australian Woollen Mills Ltd v. F.S. Walton & Co Ltd  (1937) 58 CLR. 641 at 658 where Dixon and McTiernan JJ said:

In deciding this question, the marks ought not, of course, to be compared side by side.  An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought.  The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same.  The effect of spoken description must be considered.  If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, their similarities both of sound and of meaning may play an important part.  The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected.  Potential buyers of goods are not to be credited with any high perception or habitual caution.  On the other hand, exceptional carelessness or stupidity may be disregarded.  The course of business and the way in which the particular class of goods are sold gives, it may be said, the setting, and the habits and observation of men considered in the mass affords the standard.  Evidence of actual cases of deception, if forthcoming, is of great weight.

Mr Stevens said that in assessing deceptive similarity the concept of imperfect recollection is of particular importance and this is especially so where the trade marks contain no word elements.  He noted that 'in most persons the eye is not an accurate recorder of visual detail and marks are remembered rather by general impression or by some significant detail than by any photographic recollection of the whole' re Lord Radcliffe in de Cordova v Vick Chemical Co (1951) 68 RPC 103. He observed that there is a paucity of case law in respect of device-only trade marks but referred to a number of cases where the idea of the trade marks, or impression created by the trade marks, provide assistance with the determination of deceptive similarity. These cases are Australian Woollen Mills Ltd v. F. S. Walton & Co Ltd (1937) 58 CLR, Dial-an-Angel Pty Ltd v. Sagitaur Services Systems Pty Ltd 19 IPR 171, Danish Bacon (1934) 51 RPC 148, and Jafferjee v. Scarlett (1937) 57 CLR 115. Mr Stevens said the following passage from Jafferjee is particularly relevant:

Two marks, when placed side by side, may exhibit many and various differences, yet the idea left upon the mind by both may be the same, so that a person acquainted with a mark first registered and not having the two side by side for comparison, might well be deceived if goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted.  Take, for example, a mark representing a game of football; another mark may show the players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football.  It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon the marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing.

Mr Stevens submitted that the applicant's and the opponent's respective trade marks both depict a figure with arms, legs and head conveying a sense of motion against the background of a circular or oval device.  He said that the idea or impression of the trade marks is sufficiently close to establish the requisite level of deceptive similarity.  However he said that in assessing deceptive similarity as per Australian Woollen Mills Ltd v. F. S. Walton & Co Ltd, supra, it was also necessary to assess 'the usual manner in which potential buyers behave' and 'the course of business and the way in which particular goods are bought or sold.'  He claimed that, even if the goods are prescription drugs only, they will be handled not only by those with a very high degree of discernment and skill, but by a broader range of ordinary and less skilled handlers, including staff in medical centres, nursing aids, pharmacy staff and patients and their carers.  Therefore he argued that the scope for error is potentially broad.

Mr Stevens then submitted that the opponent's trade mark is an eye catching and appealing trade mark, the use of which could expand to a wider range of goods than pharmaceuticals and that it could function as a house mark.  There followed some discussion as to the definition of a house mark.  Mr Skelly did not agree that it would necessarily be seen as one.  It might be used as an ancillary trade mark rather than a house mark.  He agreed, however, that for prescription pharmaceuticals it would necessarily function at least as an ancillary trade mark because of the necessity to use a word with the device.

Mr Stevens concluded his submissions with a reference to the opponent's recent successful oppositions to the subject trade mark in New Zealand and the United Kingdom.  He said it was relevant that the hearing officer in the New Zealand decision said at p13:

In this present case both marks convey the human figure in movement, but in a way that I find is too similar.

and in the UK decision at paragraph 28 the hearing officer said:

Pharmaceutical preparations are not, I would suggest, chosen without some consideration.  The average consumer of such products would, in my opinion, exercise some care in the selection.  Even so allowance must be made for the notion of imperfect recollection.  The resemblance between the marks is such that, comparing the marks (without added matter) and assuming use on identical goods, even medical practitioners, pharmacists and women on HRT would be caused to believe that there was an economic connection between the party or the parties using these marks on HRT products.

Submissions on behalf of the applicant.

Mr Skelly agreed with Mr Stevens that the onus lies with the opponent to satisfy the Registrar that there is a reasonable likelihood of deception and to positively satisfy the registrar that the ground relied upon has been made out.  On the matter of deceptive similarity he referred to the tests set down in the Shell case supra and also the words of Windeyer J at 416 where he also said:

[the] deceptiveness that is contemplated must result from similarity; but the likelihood of deception must be judged not by the degree of similarity alone, but by the effect of that similarity in all the circumstances.

Mr Skelly referred then to the Woolworths Metro case, supra, where French J redefined the propositions of Kitto J in respect of deceptive similarity in the Southern Cross case.  Mr Skelly omitted, in doing so, a paragraph from item (ii) of the reformulation.  In my analysis of the issues, which follows, the omitted text is relevant, and I am required, therefore, to deal with it.  Mr Skelly submits as follows:

(i) To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient.

(ii) A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source.  It is enough if the ordinary person entertains a reasonable doubt.

(omitted material)

(iii) In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration.  These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.

(iv) The rights of the parties are to be determined as at the date of the application.

(v) The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion.  It must be based upon what the applicant can do if registration is obtained.

Under point (ii) above, French J went on to comment:

It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.

This reflects, in general, the changed onus under s 44, which initially applies prior to the acceptance of an application for registration. I do not believe that French J was suggesting, in referring to "some people", that it would be sufficient if a mere handful of people would be left in doubt.  Firstly, I do not believe that he was attempting to modify his previous stipulation, for which there is long-standing authority in a case to which he had just referred, that the doubt that must afflict the "ordinary" person must be a "reasonable" one.  Secondly, the requirement that the number of people affected by doubt or confusion be "substantial" has been repeatedly endorsed.  The only thing that has shifted, with the move to the 1995 legislation, is the onus, not the benchmark.  The benchmark comes from Smith Hayden's application (1946) 63 RPC 97 and Kendall Company v Mulsyn Paint and Chemicals (1963) 109 CLR 300 at 305, where Kitto J himself repeated and expanded what he said in Southern Cross.  He added the reference to "substantial" as an express adoption of that formula from comparable UK decisions subsequent to Smith Hayden.

On balance, I therefore entirely accept Mr Skelly's statement that the relevant test can be paraphrased as:

Assuming a use of the respective device trade marks in a normal and fair manner in respect of any of the goods for which they are registered/sought to be registered, is the Registrar satisfied that there is a reasonable likelihood of deception or confusion?

Mr Skelly agreed with Mr Stevens that case law in respect of device trade marks is rare but said that the cases already referred to provided useful guidance as do the Pianotist case (1906) 23 RPC 777 per Parker J and the Sports Cafe case [1998]1614 FCA.  Mr Skelly also referred to the CA Henschke & Co v Rosemount Estates Pty Ltd [2000]FCA 1539 (31 October 2000) where the court noted that there is no room for doubt, in general terms, about the test to be applied when assessing deceptive similarity and referred with approval to the tests defined by Dixon and McTiernan JJ in the Australian Woollen Mills case supra.  The same court also noted the equally well-known passage on deceptive similarity, from the judgement of Windeyer J in the Shell case, supra.  In the Henschke case the court noted that:

it is still true that questions of deceptive similarity must be considered against the background of the usages in the particular trade .....  such circumstances provide the context for consideration of the question whether a near resemblance between two marks is likely to deceive or cause confusion.

Mr Skelly said that in the Jafferjee case, although it was found that the trade marks were deceptively similar, a relevant consideration was that the respective trade marks were to be stencilled on rough jute flour bags and that as a consequence the trade marks would be rather less clear and precise in detail than they would be on paper.

In respect of the Danish Bacon case the goods were food products and Mr Skelly said that a distinction could be made between the care taken in the purchase of these goods and the greater care taken in the purchase of pharmaceuticals.

There was some evidence of confusion to members of the public in the Dial-an-Angel case, said Mr Skelly, and this was relevant to the finding of deceptive similarity in that case.

Mr Skelly was critical of the evidence in respect of the comparison between these device marks.  He said the opponent had submitted no evidence to show how independent and impartial persons may view the respective trade marks - the evidence filed in support is not from impartial persons.  He observed that it was of interest that when the opponent's trade mark was indexed for the Trade Marks Office database it was indexed as a grotesque apple and a disc-head.  By comparison he said, the applicant's trade mark is indexed by reference to a four blade impeller forming a disc-head person breaking and ellipse.  He noted that the persons responsible for indexing trade marks would be impartial and untainted by preconceptions.

Mr Skelly submitted that in the NEXAVAR case ATMO 3 (16 January 2002), the Registrar's delegate said in reference to the onus of establishing the likelihood of deception resting with the opponent that, 'Without supporting evidence, it will often be difficult for an opponent to discharge this onus.'  This case was also in respect of pharmaceuticals as was another recent case in which the delegate found in favour of the trade mark applicant.  This was the ASTRIVO case, ATMO 50 (31 May 2002) where the delegate said:

In terms of the course of business through which the goods are sold, and the care that is likely to be taken, it is important to note that the goods in question are pharmaceuticals.  I am not aware of any goods to which a higher vigilance is applied in specifying, selecting, supplying or taking.  Certainly, medical practitioners and pharmacists are likely to be acutely aware of the need for precision when it comes to the selection and administration of medication.  I believe that the same can be said of patients, insofar as their expertise allows.

He took issue with the characterisation of the opponent's trade mark as being that of a figure, and that figure in motion against a circular background.  He said that while it may be true that it could be characterised as a figure it could just as easily be seen as an apple and, whether or not you then see a figure within it, the first impression of the trade mark would be that of the image of an apple.  He argued that if a human figure could be seen in the trade mark he did not think it could be characterised as a figure in motion.  He said it resembled a figure with outstretched arms in a fixed or static position.  Mr Skelly asserted that the applicant's trade mark however, conveys an impression of motion which is not immediately apparent in the opponent's trade mark.  He argued that if the respective trade marks are considered to convey the image of a person it should be taken into account that it is not uncommon for trade marks to contain stick figure elements in various postures and that there are numerous registrations for such trade marks.

He said he did not think the remaining element of the opponent's trade mark other than the so-called human figure could be characterised as a circle or an oval device.  He said this element added nothing to the idea of motion which by contrast could be seen in the applicant's mark which conveys an idea or impression of fluidity of movement.  He doubted that the outline of the apple in the opponent's trade mark would be recalled by reference to a circle.  He argued that the idea of a trade mark discussed in Jafferjee and Scarlett has undergone some refinement and, in support of his argument referred to the Sports Cafe case where Wilcox, Heerey and Lindgren JJ said:

..the fact that two marks convey a common idea becomes relevant only it the marks themselves look or sound alike.

Mr Skelly stated that the impression carried away by each trade mark should be properly considered with allowance being made for imperfect recollection and having regard to the goods covered by the respective application and registration.  He said that he doubted that the trade marks conveyed a common idea.  In his opinion the applicant's trade mark conveyed an impression of motion whereas the opponent's trade mark is more static.

Mr Skelly argued that little weight should be attributed to decisions of administrative tribunals in other jurisdictions with different statutory regimes.  He concluded with a submission that the opponent had not discharged its onus of satisfying the registrar that the respective device marks so nearly resemble each other so as to be likely to give rise to deception or confusion and that any doubt must be resolved in the applicant's favour.

Decision

Insofar as it concerns the subject application, section 44 of the Act provides:

Identical etc. trade marks

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

(a) the applicant's trade mark is substantially identical with, or deceptively similar to:

(i) a trade mark registered by another person in respect of similar goods or closely related services; or

(ii) a trade mark whose registration in respect of similar goods or closely related services is being sought by another person; and

(b) the priority date for the registration of the applicant's trade mark in respect of the applicant's goods is not earlier than the priority date for the registration of the other trade mark in respect of the similar goods or closely related services.

Note 1: For deceptively similar see section 10.  (This provides: a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.)

Note 2: For similar goods see subsection 14(1).

Note 3: For priority date see section 12.

The applicant's goods are prescription-only pharmaceuticals and these are covered by the opponent's specification for a broad range of goods in class 5, including prescription and non-prescription pharmaceuticals.  The necessary priority date is established.  I have said already that I agree with Mr Skelly on one point, that there are obvious differences when the marks are compared side-by-side.  As a result the trade marks are not in my opinion substantially identical.  Therefore, I am required to determine only if they are deceptively similar.

That determination is difficult as it largely depends on individual perceptions and interpretations of the totality of the elements that have gone into the creation of the competing trade marks. 

I note that the applicant's trade mark will be used only in respect of prescription goods.  However, it is patently unlikely that the devices in question would feature in the written prescription of the drugs in question.  As a consequence the applicant's trade mark will, of necessity, be used only in conjunction with a word or words.  This last factor is double-edged.  It means that the goods are dispensed on written order and get into the hands of patients only via those of skilled practitioners, and there is considerable authority for the proposition that this should ordinarily be given due weight.  On the other hand, the day-to-day attention of all concerned is likely to be on the accompanying word-mark, rather than on any ancillary or house mark.  The device will, when referred to or considered, be seen as some sort of secondary indication of trade source.  I do not, on balance, believe that I should give the weight that I ordinarily would to the "prescription-only" aspect.

Both the applicant's and the opponent's trade marks consist of a stick figure with outstretched and curving limbs against, respectively, an ellipse and a roughly circular device with a slight indentation at its base.  This latter device is, when seen properly, a representation of an apple with the upper limbs of the stick figure representing two leaves.  Thus, some people may first see an apple in the opponent's trade mark.  To the extent that it applies, this makes it hard for Mr Stevens' argument to succeed. 

Clearly, in comparing device marks, the test must often come down to one of first impression.  The impression for which Mr Skelly has argued is, perhaps, the most probable.  However, the matter does not end there.  There is a range of probable perceptions or recollections and, for a significant number of people, Mr Stevens' reference to the case of de Cordova v Vick Chemical Co is apposite.  To repeat: 'in most persons the eye is not an accurate recorder of visual detail and marks are remembered rather by general impression or by some significant detail than by any photographic recollection of the whole'.  This, of course, is always subject to the caution that the doctrine of imperfect recollection must not be taken too far.  None the less, I think Mr Skelly's view, while arguably a correct statement of the likely view of many people, is likely to be incorrect for others.

In my opinion the essence of the competing marks will, in the minds and perceptions of a substantial number of people, be of a stick figure giving an impression of exuberant energy in a setting with both circular and strong diagonal whirling elements.  That view, simplistic as it may be, is, I think, particularly likely among those who first encounter the applicant's device and then encounter the opponent's.  There will be, for that group, a close similarity in the stick figures in their background settings or contexts, even though the manner in which they convey energy is not identical.  The evidence that stick figures, per se, appear to be common in trade marks for these goods does not change this.  I am therefore satisfied that there is a real and tangible danger of deception or confusion among purchaser who knows of one trade mark and encounter the other.

This ground of opposition has therefore been established.

Conclusion

I have found the opponent has established its ground of opposition under the provisions of section 44 of the Act. I therefore refuse to register trade mark application 796534. The opponent has been successful in these proceedings and requested its costs. I therefore order that the applicant pay the opponent's costs in accordance with the scale.

Terry Williams

Hearing Officer

Trade Marks Hearings

29 November 2002