Lifinia Pty Limited v Zero Corporation

[1993] ATMO 75

TRADE MARKS ACT 1955

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS

Re:Objection by LIFINIA PTY LIMITED to an application for an extension of time to lodge evidence in answer to an opposition by ZERO CORPORATION to registration of trade mark application number 521571

and

Opposition by ZERO CORPORATION to registration of trade mark application number 521571 in the name of LIFINIA PTY LIMITED

Background to the matter

Application number 521571 was lodged on 23 October 1989 in the name of LIFINIA PTY LTD (the applicant).  The application was for registration of the word mark ZERO and was advertised accepted in the Official Journal of 19 March 1992 for the statement of goods "Handbags, travelling bags, purses, wallets (not included in any other classes), and all goods under Class 18".

Notice of opposition to the mark's registration was lodged on 16 June 1992 by ZERO CORPORATION (the opponent).  The main grounds of opposition, as stated in the notice, may be summarised as relating to claims that the applicant is not the proprietor of the mark; that the mark is not distinctive of the applicant's goods; that the applicant does not provide all of the goods for which registration is sought; that it did not at the date of application have an intention to use the mark in respect of the goods of the application; and that registration of the trade mark would be likely to cause deception or confusion by reason of its close resemblance to trade marks owned by the opponent for similar goods.

The opponent's evidence in support was served on 12 January 1993 and the applicant's evidence in answer became due on 12 April 1993.  As this evidence was not served by the due date, the opponent sought a hearing in the substantive matter under the provisions of reg.49.  The matter was then set down to be heard on 6 July 1993.  On 23 June 1993, the applicant applied under s.130 of the Act for a belated extension of time within which to serve evidence in answer.  The Registrar's delegate proposed to allow the extension but the opponent advised that it objected to such a course.  Given the short duration until the hearing in the substantive matter, it was agreed by all parties that submissions on both matters in dispute be heard concurrently.  I would then reserve my decision on both, only considering the late material as evidence in answer in the substantive opposition should I decide to grant the extension to serve it.  I will firstly deal with the matter of the objection to the extension of time to serve evidence followed by the matter of the full opposition.

At the hearing, which was held in Sydney on 6 July 1993, the opponent to both the allowance of the extension and to registration of the trade mark was represented by Mr Ray Walton of Griffith Hack & Co, trade mark attorneys.  Appearing for the applicant for the extension and the trade mark was Ms Julia Baird of Counsel, instructed by Hancock Alldis, lawyers.

Opposition to extension of time application

Submissions

Mr Walton detailed the history of the lodgment of the notice of opposition and evidence in support.  He said that there had been some difficulty in obtaining confirmation of service of that evidence from the applicant's agent but the date had finally been confirmed as 12 January 1993, thus making the due date for service of the evidence in answer as 12 April 1993.  This date passed with no evidence being served and it was only after a hearing date had been set that a belated application for an extension had been made.  He said that it was unclear from the application as to whether the extension was being sought under s.130 or reg.69.  Indeed, he was uncertain, even after reading the authorities, which was the relevant provision.  The cases he quoted included D'Urban Inc v Canpio Pty Ltd 17 IPR 486 and Bernard Leser Publications Pty Ltd v Spiritual Group Cos Pty Ltd 5 IPR 149. He said that the case law appeared to be divided on the subject. However, it could be inferred from some that an application for extension should be made under s.130 but that, if it was made out of time, the provisions of reg.69(b) applied. If reg.69 applied for those instances of applications which were made out of time, then "special circumstances" must exist which prevented lodgment within the time specified.

Mr Walton said that here, the application was clearly out of time and went on to dispute that the "special circumstances" countenanced in reg.69 were outlined in a declaration by Mr Hill, the solicitor who has been acting for the applicant - firstly as a partner of the firm Aitken & Magney, solicitors, and latterly as a member of the present agent, Hancock Alldis.  He said that the details supplied by Mr Hill were inconsistent and, in some respects, incorrect.  This information related to the dates on which a change of address for service was recorded with the Trade Marks Office and when service of evidence was properly due; the circumstances resulting from Mr Hill's change of firms; and the claim that the previous agent had allegedly maintained a lien over the applicant's file thereby denying him access to information contained therein.  These circumstances, he said, could not be described as sufficiently "special" to satisfy the provisions of reg.69.  Further, if s.130 was being relied upon, then there was nothing in the document to show that it was applied for promptly; and nothing there to show frank, comprehensive or clear disclosure of the circumstances relating to the need for the extension: see Jenkinson J's words in Kimberley-Clark Ltd v Commissioner of Patents & Another 13 IPR 569.

Ms Baird, in reply, said that, regardless of which part of the Act or regulations should be rightly applied to the granting of the extension, the most important matter for hearing by the Registrar was whether the full evidence from both sides to the dispute should be before him for proper consideration.  The opposition was based on the grounds of disputed proprietorship and alleged deception or confusion and, therefore, raised matters of strong public interest.  This issue, she said, should override all other considerations: Studio Srl v Buying Systems (Aust) Pty Ltd 22 IPR 580. On the subject of the interests of the parties to the dispute, she said that there had been no argument put forward to show that the opponent would be particularly disadvantaged by the granting of the extension and the fact that the opponent had waived its right to serve evidence in reply was further evidence of this. On the other hand, the applicant would be particularly disadvantaged if it could not serve its evidence to dispute the serious allegations of a lack of a bona fide intention to use the mark and its proper ownership.

Ms Baird said the time taken up so far by the proceedings was not excessive as only a little over twelve months had elapsed since the opposition had been lodged.  Given the opponent had decided not to serve any evidence in reply to the material in dispute purported to be evidence in answer - even if it was allowed to be served - the matter should soon be resolved.  She said that, regardless of whether the provisions of s.130 or reg.69 applied, all of the perceived conditions had either been met, or were not relevant.  Good reasons for granting the extension had been shown and the circumstances surrounding the lateness of the submission were sufficient to allow the Registrar to exercise his discretion favourably in allowing it.  Mr Hill had declared that he had been confused as to the date that the evidence in answer had been due.  He had wrongly assumed that the three month period for service of evidence in answer had extended from the date that a previous decision by the Registrar's delegate had issued on the allowance of an extension of time to serve evidence in support - 19 March 1993.  This misconception had been exacerbated by the lien held over the applicant's file by the previous agents, an action which had denied him access to certain information.  Once the file had been received and the error had been recognized, the evidence in question had been served at the same time as an application for an extension to do so.

Decision

Section 130 of the Act reads as follows:

Where, by this Act, a time is specified within which an act or thing is to be done, the Registrar may, unless otherwise expressly provided, extend the time either before or after its expiration.

Regulation 69 provides that:

An application for an extension of time under these Regulations shall be in writing and shall be lodged at the Trade Marks Office-

(a)       before the expiration of the time sought to be extended; or

(b)if the Registrar is satisfied that special circumstances existed which prevented the application being made before that time, within such time as the Registrar allows.

The first issue to be clarified here is the matter of whether the provisions of s.130 or those of reg.69 are appropriate in determining the matter.  I believe the correct approach was outlined by Assistant Registrar Farquhar in D'urban v Canpio, supra, where she said that the Registrar's powers to grant extensions of time to do something arose generally from the provisions of s.130 and that this section applied equally to times set by the regulations.  The applicable regulation in that case was 69 and the provisions outlined in that regulation restricted the general discretion to grant the extension.  I believe that the situation here is analogous in that the extension is sought from the Registrar under s.130 and it is "out of time".  Thus, reg.69 is triggered so that the "special circumstances" mentioned in that regulation sufficient to satisfy the Registrar must be shown before he can favourably exercise his discretion.

If those circumstances are shown, then the matter to be decided here falls squarely into the same class of issue as in Lyons & Another (trading as Mitty's Authorized Newsagency) v Registrar of Trade Marks and Another (1983) 1 IPR 416 and Vangedal-Nielsen and Others v Smith (Commissioner of Patents and Another (1981) 33 ALR 144. The factors which are discussed in those cases and which should be considered in this context are:

*has the applicant for the extension discharged its onus by making out a proper case to justify the grant of the extension?

*when the interests of both parties and the public are taken into consideration, does the balance lie with allowing the extension?

In the present instance, the application for the extension under s.130 was submitted out of time. I am of the opinion that the reasons put forward by Mr Hill as to why the application was outside the time specified do constitute "special circumstances" in terms of reg.69.  Mr Hill was denied access to the relevant file because of the lien over it held by his previous associates.  I feel that this would have hampered his efforts to some degree in establishing the correct due date that evidence in answer was due.  I am further of the opinion that Mr Hill's declaration shows that his confusion as to the number of extensions which had been granted, and as to the correct date that the evidence was due, is perhaps related to his inexperience in prosecuting trade mark matters such as the present application.  I feel that all of these factors together are sufficient for me to decide that sufficient "special circumstances" existed which prevented the application from being made within the time prescribed.

Having so found, I now turn to whether the applicant has made out a proper case to justify the extension.  Mr Hill's explanation of the state of affairs which faced the applicant would seem to fulfil this criterion.  Upon receipt of the errant file from his previous associates, Mr Hill interviewed the applicant's Operations Manager, Mr White.  The result was the statutory declaration made by Mr White which comprises the potential evidence in answer.  This declaration was dated 23 June 1993 and served on the opponent on the same day.  Given Mr Hill's restriction of access to his client's file and the information it contained which could determine what course the applicant should take, I feel that it has made out a proper case for my allowance of the extension.

With respect to the competing interests of both parties in relation to the allowance, or not, of the extension, the opponent has submitted no evidence to show that it would be disadvantaged in any way.  On the other hand, a denial of an opportunity for the applicant to lodge any evidence at all, to counter the opponent's evidence in support, would severely limit its case in defence of its application.
As to whether the public interest lies with allowing the extension, it would seem to be in the correct course to allow all available evidence to be served for proper consideration of the matter.  The Registrar would then have available to him all of the relevant material and thus be in a better position to properly protect the public interest.

The fact that the evidence in question was served concurrently with the application for its late service gives further impetus to my allowing the extension.

Conclusion

On the basis of the foregoing, I have come to the conclusion that the applicant has discharged its onus of showing why the extension should be allowed.  I therefore allow the extension sought.

On the question of costs, I am of the opinion that circumstances exist which allow me to depart from the normal course that costs should follow the result.  The opponent has been constantly frustrated in obtaining confirmation of receipt of evidence lodged, due to Mr Hill's changes in employment and, having completed its own evidence in support and believing that no evidence was being lodged in answer, sought a hearing.  Then, at the eleventh hour, the evidence in question was produced, causing added expense to the opponent in reviewing the matter.  I therefore think that, in the circumstances, although the applicant has been successful in having its evidence allowed, the opponent may have had some justification in testing the matter.  I therefore find that both sides in this matter should be responsible for their own costs.

Opposition under s.49

I will now proceed with the matter of the substantive opposition, which I have outlined previously, on the basis that I have allowed the extension for the evidence in answer to be lodged and can now consider it in coming to my decision.

Submissions

Mr Walton said that the opponent relied upon on all of the grounds as listed in the notice of opposition.  Principally, it alleged that the applicant was not the mark's proprietor, that the mark was not distinctive of the applicant and that it did not use the mark on all of the goods claimed.  He took me through the evidence in support of the opposition, commencing with the declaration by Mr Daniels.  This declarant described the goods sold by the opponent under the mark ZERO HALLIBURTON, and the history of sales and advertising world-wide under that mark, and then in Australia since 1988.  Mr Walton said that the dominant feature of its mark was the word ZERO - the word HALLIBURTON forming a subsidiary portion of it.  He also said that the word ZERO had become a "house" mark of the opponent.   Ms Ingram's declaration described how her company had marketed the opponent's goods since October 1988    She said that many customers were aware of the opponent's mark before they saw it in her store and were aware of its origins in the US.   Mr Hunt, in his declaration, said that his company had sold some the opponent's goods in Australia under the ZERO and ZERO HALLIBURTON marks in or about 1980 but did not continue this use following a market decline.  His company had recommenced sales under the marks in 1988 and has continued to do so.  Mr Walton referred me, inter alia, to Shell Co (Aust) Ltd v Rohm and Haas Co (1948) 78 CLR 601 and Seven Up Co v OT Ltd (1947) 75 CLR 203 to support his argument that use of a mark in Australia on behalf of an overseas proprietor constituted use by that entity and, if it was first use, denied the right of registration of the same, or similar, mark to a later applicant. He said that this was the case in the present instance and that registration of the present mark should be denied to the applicant under s.40 of the Act. According to the declaration by Mr White which comprised the applicant's evidence in answer, the first use of the mark ZERO by the applicant on its goods was not until 1989. It therefore did not have first use and was not the proprietor. Mr White had further admitted in his declaration that the applicant did not use the mark on all of the goods covered by the specification - namely "metal or metal look luggage, attache cases...".

In reply, Ms Baird said that, although the Registrar was not bound by the usual rules of evidence in his consideration of supporting material, administrative tribunals should administer substantial justice and weigh the probative value of material before it: The Crown v The War Pensions Entitlement Appeal Tribunal and Anor. (1933) 50 CLR 228 and Strata Welding Alloys Pty Ltd v Charles & Reid Associates Ltd 9 IPR 539. On this basis, she said that I should attach little weight to much of the opponent's evidence in support. With respect to the Daniel's declaration, she said that many of the statements were unclear as to when the opponent's mark was first used in Australia or what goods they were used upon. Many of the claims made were unclear and sales figures quoted were not all related to the local market place. The declaration also referred to cases and containers for electronic, computer and camera equipment. These were not Class 18 goods which were included in the specification of the present application. In any event, the Class 18 goods alleged by Mr Walton to be shown by the evidence as being sold by the opponent prior to the present application were comprised almost exclusively of metal or were of metal appearance. She spent some time analysing the declaration and the attached exhibits, submitting that much of the information contained was unreliable with respect to the dates the opponent commenced using its mark in Australia and the scope of its local sales of the relevant goods. She said that much of the declaration was unproven assertion and I should not infer that use of the opponent's mark predated the present application.

Ms Baird said that a similar situation arose from an analysis of the declaration of Ms Ingram, with the added dimension that many references to the opponent's goods mentioned the word HALLIBURTON not ZERO or ZERO HALLIBURTON.  This was also the case with the declaration of Mr Hunt.  She also submitted that Mr Hunt's claims of 1980 sales of the opponent's goods were unsubstantiated and therefore flawed.

Ms Baird said that any prior claim to proprietorship of the mark ZERO must be found at common law.  This was not available in the present case, as the opponent had no subsisting reputation in that mark: New South Wales Dairy Corporation v Murray Goulburn Co-operative Co. Limited (1989) 14 IPR 26 at 46. Despite the present application being for the mark ZERO alone, the opponent could only claim use of the full mark ZERO HALLIBURTON or HALLIBURTON, and only then on metal carrying and attache cases. None of this use could be conclusively proven to have taken place before the present mark's lodgment. She submitted that, because of this, the opposition under s.40 of the Act should fail.

In relation to the objection that the registration of the mark would be likely to cause deception or confusion, Ms Baird said that the rights of the parties should be determined as at the application date: Southern Cross Refrigerating v Toowoomba Foundry (1954) 91 CLR 592 and that account should be taken of the actual manner of use of the opponent's mark. This use had been only shown to be for the mark ZERO HALLIBURTON on highly priced metal cases, many of which were outside the class in question. All of the evidence lodged indicated that there was no likelihood that the applicant's mark, if used in a normal or fair manner on the goods specified, would cause deception or confusion amongst a substantial number of persons. She did add here that, if it would assist the situation, the

applicant would be prepared to exclude any goods in the class which were made of metal or of metal appearance.  Finally, Ms Baird said that there had been no blameworthy conduct by the applicant shown by the opponent in its evidence or submissions, something now required by the Office to be shown in addition to deception or confusion.

Finally, she submitted that there had been no evidence lodged to support any of the other grounds relied on by the opponent and the opposition based on them should also fail.

Decision

Section 40 - Proprietorship
The provisions of s.40, so far as is relevant here, are that:

A person who claims to be the proprietor of a trade mark may make application to the Register for registration of that trade mark in Part A or Part B of the Register

On that subject, McGarvie J said in Settef S.p.A. v Riv-Oland Marble Co (Vic) Pty Ltd (10 IPR 402 at 413):

The basic common law principle is that the first person who uses a trade mark of an appropriate type within a country becomes the proprietor of the mark there: Re Registered Trade Mark "Yanx"; Ex parte Amalgamated Tobacco Corp Ltd (1951) 82 CLR 199 at 203; Thunderbird Products Corp v Thunderbird Marine Products Pty Ltd (1974) 131 CLR 592 at 603; Moorgate Tobacco Co Ltd v Philip Morris Ltd(No 2) 59 ALJR 77 at 83.
            ...

In considering who, within s.40(1) of the Act, was at the time of Settef's application for registration the proprietor of the trade mark, one considers who at common law was the proprietor in Australia: The Shell Co of Australia Ltd v Rohm & Haas (1949) 78 CLR 601 at 625 and 627.

In other words, the first user of the mark in Australia (for relevant goods and prior to the date of application) becomes the proprietor at common law.  That proprietorship, however, is limited to "the same kind of thing", per Holroyd J in Re Hick's trade mark (1897) 22 VLR 636 at 639. Any small amount of use will suffice, but the effect of the act relied on to constitute use must be the creation in the minds of those concerned of an impression that goods of a particular trader are being offered for sale in Australia.
I am mindful of Ms Baird's submissions regarding the necessity for any evidence to be logically probative before I can give it weight in my considerations.  However, I would point out that the Registrar functions as a tribunal rather than as a court of justice.  The rules of evidence which pertain to a court do not necessarily apply to a tribunal which carries out an administrative and not a judicial function.  This is not to say that I do not need to decide things on the facts but rather I should give all parts of the evidence appropriate weight in my overall consideration of the matter.  All of the evidence lodged here is in the form of statutory declarations and annexed exhibits.  The declarants are therefore stating what they believe to be the truth.  However, whether I, as the Registrar's delegate, decide the statements are relevant fact, is a point of law.

It is clear that, prima facie, the applicant's mark ZERO and the opponent's full mark ZERO HALLIBURTON are not the same.  The word HALLIBURTON is a substantial difference.  However, the opponent has claimed that its goods are also sold under the mark ZERO and that this word is seen as its house mark.  The question then arises of the ownership of the ZERO mark in Australia for the appropriate goods.  Mr Daniels says in his declaration that the mark ZERO has been used in Australia from at least as early as 1988 on items which could fall in the relevant class but also on goods which lie outside this class.  He gives Australian sales figures said to be for a range of goods but the amount of sales specific to Class 18 goods is unclear.  He says that the opponent's goods were sold by the entities, Hunt Leather Pty Ltd and Remo, and annexes copies of invoices to show that this has occurred.  However, these invoices - some of which do show dates prior to that of the present application - do not contain the mark ZERO, solus, but instead are all headed by the words ZERO HALLIBURTON.  Also annexed to his declaration are specimens of product brochures showing the word ZERO in different print to the word HALLIBURTON and picturing metal or metal look cases - some of which lie outside Class 18.  These might have gone towards showing that the word ZERO could be considered as a house mark, for the purposes of Australian use, except that all of the material was printed in the USA and does not show use of that word on its own in Australia.  Indeed, as Ms Baird pointed out, many of the brochures were printed in Utah, following a relocation of the opponent's place of business to that state in 1992 and could only have been produced after the subject mark's lodgment.  This part of the evidence is therefore inconclusive in showing prior use of the mark ZERO in this country.

Ms Ingram, in her declaration, says that her company, Remo City Ventures Pty Ltd, commenced selling the opponent's goods under the marks ZERO and ZERO HALLIBURTON in October 1988, from the time her company was founded and adding that many of her customers are aware of the opponent's marks and their US origin.  She annexes catalogues of goods sold by Remo which, she says, contain references to the products sold under the ZERO and ZERO HALLIBURTON marks.  However, all of these catalogues are dated after the date of lodgment of this application, 23 October 1989, and thus cannot substantiate use of the mark ZERO before that date.  In any case, the only mark used in the catalogues is ZERO HALLIBURTON not ZERO alone; the goods depicted are metal cases only; and, in at least two instances, the goods are referred to as "Halliburtons" - which would seem to indicate that the word "Zero" is seen as subsidiary in the Australian context.

The declaration by Mr Hunt states that his company, Hunt Leather Pty Limited, imported and sold the opponent's goods in 1980 under the marks ZERO and ZERO HALLIBURTON.  However, this claim is not substantiated in any way and I cannot find, on this assertion alone, that use on behalf of the opponent of the mark ZERO occurred in Australia at that time.  Mr Hunt further states that his company commenced selling goods under the marks since 1988.  However, this claim suffers the same drawbacks as the
statements by Mr Baird and Ms Ingram, in that the mark ZERO is not shown to be used on its own and the promotional material is not able to assist in showing the  dates of first use as being before the date of this application.  Further, the only goods shown to be sold by this company bearing the opponent's marks, appear to be metal cases - some of which are outside the appropriate class.

Having considered all of the foregoing, I can only conclude that the opponent was not the first user of the mark ZERO in Australia and the applicant, by virtue of its application to register the mark, is the proprietor of that mark in this country.  I therefore dismiss the opposition as it is based on this ground.

Section 28 - Deception and confusion
The provisions of this section of the Act reads as follows:

A mark -

(a) the use of which would be likely to deceive or cause confusion;
           (b) the use of which would be contrary to law;
           (c) which comprises or contains scandalous matter; or

(d) which would otherwise be not entitled to protection in a court of justice,

shall not be registered as a trade mark.

The test to be applied under paragraph (a) of these provisions, on which the opponent partly relies, has been well established by cases such as Southern Cross Refrigeration Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 608, where the High Court said:

Registration should be refused if it appears that there is a real risk that the result of the user of the mark will be that a number of persons will be caused to wonder whether it might not be the case the two products come from the same source.

That risk must extend to a substantial number of people: Kendall Co v Muslyn Paint and Chemicals (1963) 109 CLR 300.

Following the High Court decision in New South Wales Dairy Corporation v Murray Goulburn Co-operative Company Ltd 18 IPR 385 (the Moo case) the Registrar now follows the practice as laid out in the decision of Hearing Officer Homann in Titan Manufacturing Co v John Terrence Coyne 22 IPR 613 - that is that all paras of s.28 should be read together. This means that, should I find that the marks are likely to deceive or cause confusion, then it will also be necessary to find that the mark would not be entitled to protection in a court of law.

In assessing the reputation of the opponent's marks in Australia, the relevant date is the date of lodgment of the applicant's application, Southern Cross, supra - 23 October 1989.  It is therefore necessary to consider the evidence of use of the marks in Australia prior to that date.  I have already found that the mark ZERO did not appear to have been used on its own in Australia before the present application's date of lodgment.  The opponent's reputation would then only appear to reside in respect of the mark ZERO HALLIBURTON, although the date from which this reputation extends is difficult to ascertain.  Notwithstanding this, and despite the fact that the applicant's mark is wholly contained within the opponent's mark, I do not think that "a substantial number of persons" would be deceived or confused in the market place.  The opponent's goods are very expensive metal "designer" cases with, I would expect, a discerning and affluent market.  On the other hand, the applicant's goods are sold, according to Mr White's declaration lodged as evidence in answer, in stores such as Kay's Bag Stores, a bag store chain found in many suburban shopping centres.

In any event, the opponent has not shown that the applicant has committed any blameworthy act so as to be caught by para (d) of s.28.  I therefore find that the objection based on this section of the Act must also fail.

Intention to use
Mr White has stated in his declaration, lodged as evidence in answer, that the applicant has not used and does not intend to use its mark in relation to "metal or metal look luggage, (and) attache cases".  The application would therefore appear to be caught by the provisions of s.6(2) with respect to use of the mark in relation to those goods.  It would follow, therefore, that the applicant is not the proprietor of the mark under s.40 for those goods.  I therefore find that the mark should not have been accepted for those goods.

Conclusion

I find that the opponent has failed on all but one of the grounds relied upon but has been successful in showing that the applicant does not intend to use the mark on all of the goods claimed.  In consequence, I allow the applicant 28 days from the date of this decision to delete those items from the statement of goods.  Ms Baird did indicate at the hearing that the applicant would be willing to so restrict the goods if the matter of honest concurrent use was raised with respect to the opponent's own mark but I feel that, in the present circumstances, such an exclusion is also warranted.  If the applicant complies with this condition, I will then issue my decision allowing the application to proceed for the restricted statement of goods.  In the event that it does not agree to restrict the goods before the expiry of that time, I will issue a final decision refusing the application.

Costs

Both sides sought costs in the substantive matter.  Should the applicant agree to restrict the goods as above, I think it is true to say that both sides have been partially successful.  In those circumstances, it would appear to be proper for each party to bear its own costs and this I would so order.  However, if the applicant decides not to amend the statement of goods and I issue my decision refusing the application, the opponent will have been successful in its opposition.  I would then order that costs be awarded in favour of the opponent.

Ian Forno
Hearing Officer

25 August 1993