Melbourne City Football Club Inc v MHFC Holdings Pty Ltd

[2017] ATMO 99

TRADE MARKS ACT 1995

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

Re:Opposition by Melbourne City Football Club Inc. to registration of trade mark application 1601282 (9, 18, 25, 28) - MELBOURNE CITY FOOTBALL CLUB - in the name of MHFC Holdings Pty Ltd.

Delegate:

Heath Wilson

Representation:

Opponent: Ian Horak of Counsel instructed by Anita Brown of Phillips Ormonde & Fitzpatrick.

Applicant: Chris Round of K & L Gates.

Decision:

2017 ATMO 99

Opposition to registration of a trade mark under section 52 of the Trade Marks Act 1995 – grounds of opposition pursued under sections 41, 42(b), 58, 60 and 62A of the Act – section 41(4) established – trade mark refused registration.

Background

1. This decision concerns the opposition to a trade mark application under section 52 of the Trade Marks Act 1995 (‘the Act’). The current details of the opposed trade mark application are as follows:

   Trade Mark No. 1601282

   Trade Mark: MELBOURNE CITY FOOTBALL CLUB (‘the Trade Mark’)

   Owner: MHFC Holdings Pty Limited (‘the Applicant’)

   Priority Date: 16 January 2014

   Specification of Goods:

   Class 9: Apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; calculating machines, data processing equipment and computers; portable computers; computer hardware and parts and fittings therefor; computer peripherals; computer mouse mats and pads; computer mice; keyboard and screen covers; customised computer disks and CD-ROMs; PDAs; electrical and electronic communications and telecommunications apparatus; telephones; mobile phones; personal electronic devices, namely laptop computers, notebook computers, tablet computers and PDAs; parts and accessories for mobile phones, laptop computers, notebook computers, tablet computers and PDAs; covers and cases for mobile phones, laptop computers, notebook computers, tablet computers and PDAs; holders adapted for mobile phones; straps for mobile phones; covers and cases adapted for MP3 players; headphones; earphones; mobile phone headsets and hands-free kits; batteries; battery chargers; audio and/or video recordings; pre-recorded motion picture films; pre-recorded television and radio programmes; animated cartoons; photographic transparencies and photographic and cinematographic films prepared for exhibition purposes; CDs; DVDs; CD ROMs; digital video discs; cassettes; video cassettes; records; downloadable and streamable audio and/or video recordings; downloadable and streamable ringtones, music, sound recordings, MP3s, graphics, games and video images; screen savers; computer software and programs; downloadable computer software; computer games programs; computer application software; application software for mobile communication devices; downloadable electronic publications; downloadable and streamable podcasts in relation to entertainment and sport; radios; televisions; electrical and electronic apparatus for use in the reception of satellite, terrestrial or cable broadcasts; video recorders; tape recorders; cassette players; record players; juke boxes; CD players; CD-ROM players; DVD players; DVD recorders; digital audio players; MP3 players; MP3 readers; audio and/or video file recorders and/or players; magnetic tapes for recording and reproducing sound or vision; electronic storage media; memory cards; storage cases and boxes for electronic storage media, CDs, DVDs and disks; games for video game machines; peripheral devices for use with home video game machines; cameras; video cameras; cases for photographic apparatus and instruments; digital photo frames; anti-dazzle shades, glasses and visors; binoculars; magnifying glasses; goggles; eye glasses, spectacles and sunglasses and cases, chains, straps, cords and frames therefor; contact lenses and containers therefor; optical goods; holograms; compasses and barometers; bells; electronic, magnetic, and optical identity cards; payment cards, credit cards, charge cards, debit cards and smart cards; telephone cards; magnets; electric signs; illuminated signs; neon signs; cash registers; ticket dispensers; vehicle breakdown warning apparatus; articles of protective clothing (to prevent injury); parts and fittings for all of the aforesaid goods; all of the foregoing goods promoting or marketing or otherwise relating to or associated with or indicating a connection with the game or sport of football (soccer)

Class 18: Leather and imitations of leather; trunks and travelling bags; cases; suitcases; articles of luggage; garment bags for travel; brief cases; bags; sports bags; athletic bags; gym bags; boot and shoe bags; back packs; holdalls; rucksacks; duffel bags; beach bags; school bags and satchels; handbags; shoulder bags; tote bags; shopping bags; toilet bags; wallets; purses; coin purses; card holders; credit card cases and holders; ID card holders; key cases; shoulder straps of leather; umbrellas, parasols and walking sticks; umbrella covers; shooting sticks; collars, covers, leads and leashes for animals; parts and fittings for all of the aforesaid goods; all of the foregoing goods promoting or marketing or otherwise relating to or associated with or indicating a connection with the game or sport of football (soccer)

Class 25: Clothing, footwear, headgear; sports clothing; leisurewear; football shirts; football shorts; football socks; replica kits; replica shirts; replica shorts; replica socks; training clothing; tracksuits; training pants; waterproof clothing; sweatshirts; sweatpants; jackets; coats; fleeces (clothing); shirts; t-shirts; polo shirts; vests; singlets; blouses; knitwear; jerseys; jumpers; pullovers; sweaters; hooded tops; cardigans; waistcoats; suits; trousers; jeans; pants; shorts; leggings; skirts; ties; cravats; underwear; boxer shorts; briefs; thongs; lingerie; nightwear; pyjamas; night shirts; dressing gowns; bathrobes; beach clothes; swimwear; swim suits; bathing trunks; bathing caps; socks; gloves; mittens; scarves; ear muffs; wristbands; belts; braces; aprons (clothing); clothes linings; shoes; boots; sandals; slippers; sports shoes; training shoes; football boots and shoes; studs for football boots; hats; caps; visors; headbands; articles of clothing, footwear and headgear for babies and children; bodysuits; romper suits; sleep suits; bibs; baby boots; all of the foregoing goods promoting or marketing or otherwise relating to or associated with or indicating a connection with the game or sport of football (soccer)

Class 28: Games and playthings; toys; gymnastic and sporting articles; decorations for Christmas trees; apparatus for use in sports; balls for sport; playing balls; footballs; goal posts; miniature footballs; miniature replica football kits; sponge hands in the nature of novelties; rattles; gloves for games; shin guards; knee guards; elbow guards; bags adapted for carrying sporting articles; articles for playing golf; golf balls; golf tees; golf ball markers; golf bags; golf club covers; golf gloves; articles for playing darts; darts; sporting articles for use in playing snooker; snooker tables; pool tables; skis; surf boards; skateboards; snowboards; sleighs; sledges; slides; roller skates; in-line skates; rackets; exercise apparatus; tables for indoor football; fishing tackle; dice; dominoes; marbles; dolls; action figure toys; soft toys; teddy bears; puppets; bathtub toys; inflatable toys; ride-on toys; toy vehicles; flying discs; electronic hand held game units; board games; card games; playing cards; jigsaw puzzles; models in kit form; Christmas crackers; confetti; balloons; party novelties; party novelty hats; conjuring apparatus; costume masks; costumes being children's playthings; kites; skittles; home video game machines and amusement apparatus all for use with television receivers; parts and fittings for all of the aforesaid goods; all of the foregoing goods promoting or marketing or otherwise relating to or associated with or indicating a connection with the game or sport of football (soccer)

Endorsements: Evidence and/or other circumstances provided under subsection 41(4).

1. The above details were resolved during the examination of the Trade Mark under section 31 of the Act. During examination, a divisional had been filed from the Trade Mark separating out services in class 41. In a separate ex parte decision[1], I rejected that divisional under section 41(3) of the Act as a delegate of the Registrar of Trade Marks. Like the divisional, I note here that the specification of goods for the Trade Mark was amended during examination to include the wording ‘all of the foregoing goods promoting or marketing or otherwise relating to or associated with or indicating a connection with the game or sport of football (soccer)’. There was discussion at the hearing that this amendment was provided to overcome the ground for rejection under section 41. However, such an amendment would not have assisted the acceptance of the Trade Mark under section 41 and, from perusal of the official file, it is clear that the amendment was produced to differentiate it from an earlier filed trade mark registered for goods concerning the sport of Australian Rules Football. I mention this because the effect of this restriction intended to assist the Trade Mark’s progression to acceptance under section 44 of the Act is that it more closely links the Applicant’s goods to a specific sport (soccer) and it therefore has an effect on the determination under section 41.

   [1] MHFC Holdings Pty Ltd [2016] ATMO 96.

2. The examiner was satisfied with the evidence and submissions, and the Trade Mark was ultimately accepted taking into account the provisions of subsection 41(4) of the Act. The advertisement of that acceptance appeared in the Australian Official Journal of Trade Marks on 27 August 2015.

3. On 27 October 2015, a Notice of Intention to Oppose was filed by Melbourne City Football Club Inc. (‘the Opponent’) followed by a Statement of Grounds and Particulars (‘SGP’) setting out grounds of opposition under sections 41, 42(b), 43, 58, 60, 62(b) and 62A of the Act. After the Applicant filed its Notice of Intention to Defend, the evidence stages of the opposition commenced.

Evidence

Evidence in Support

·    Statutory Declaration of Gregory Morris Chambers (Patent and Trade Marks Attorney) made 21 March 2016 with exhibits GMC-1 to GMC-3 (‘Chambers’) including:

Ø  Statutory Declaration of Scott Munn (Chief Executive Officer of Melbourne City FC Pty Ltd) made 3 September 2015 with exhibits SM-1 to SM-54 (‘Munn 1’).

Ø  Statutory Declaration of Simon Pearce (Director of the Applicant) made 13 April 2015 (‘Pearce 1’).

Ø  Statutory Declaration of Zoran Milenkovski made 18 January 2016.

Ø  Statutory Declaration of Jim Georgakakis made 18 January 2016.

·    Statutory Declaration of Fabian Gimenez (Club Secretary and Vice President of the Opponent) made 22 March 2016 with exhibits FG -1 to FG-20 (‘Gimenez’).

Evidence in Answer

• Statutory Declaration of Scott Munn made 1 July 2016 with exhibits SM-1 to SM-71 – (Including confidential exhibits SM-11, SM-15, SM-19, SM-20, SM-48, SM-61 and SM-62) (‘Munn 2’).

• Statutory Declaration of Simon Pearce made 1 July 2016 with exhibit SP-1 to SP-44[2] (‘Pearce 2’).

  [2] Certain paragraphs of the declaration and a number of exhibits attached to the declaration are claimed to be confidential.

Evidence in Reply

• Statutory Declaration of Emilio De Lorso (Adviser to the Committee of Management of the Opponent) made 14 September 2016 with exhibit EDL-1.

• Statutory Declaration of Claudio Paz (Adviser to the Committee of Management of the Opponent) made 14 September 2016 with exhibit CP-1.

1. In due course, the hearing of the matter was scheduled to be heard on 19 June 2017 in Canberra. As a delegate of the Registrar of Trade Marks, I set out the timetable for the provision of written summaries of argument and both parties complied.

2. I heard the opposition on the scheduled day with the Opponent represented in person by Ian Horak of Counsel instructed by Phillips Ormonde & Fitzpatrick. The Applicant was represented by Chris Round of K & L Gates. At the hearing Mr Round confirmed that the Applicant did not have any objection to me deciding this matter despite my recent decision on the related divisional trade mark application.

Onus

1. The Opponent pressed the grounds of opposition under sections 41, 42(b), 58, 60 and 62A of the Act. The Opponent bears the onus of establishing at least one of these grounds of opposition on the civil standard of the balance of probabilities.[3] The rights of the parties are to be determined as at the date of the application[4] which is generally, but not always, the filing date.[5] For this opposition, the relevant date is 16 January 2014.

Reasons

[3] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] affirming the approach of Gyles J in Pfizer Products Inc. v Karam [2006] FCA 1663, [26].

[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82; (1954) 91 CLR 592, [595].

[5] See sections 6, 12, and 72 of the Act.

Section 41

1. Section 41 of the Act relevantly provides:

41Trade mark not distinguishing applicant’s goods or services

(1)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 (the designated goods or services) from the goods or services of other persons.

(2)A trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons only if either subsection (3) or (4) applies to the trade mark.

(3)This subsection applies to a trade mark if:

(a)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; and

(b)the applicant has not used the trade mark before the filing date in respect of the application to such an extent that the trade mark does in fact distinguish the designated goods or services as being those of the applicant.

(4)This subsection applies to a trade mark if:

(a)the trade mark is, to some extent, but not sufficiently, inherently adapted to distinguish the designated goods or services from the goods or services of other persons; and

(b)the trade mark does not and will not distinguish the designated goods or services as being those of the applicant having regard to the combined effect of the following:

(i)the extent to which the trade mark is inherently adapted to distinguish the goods or services from the goods or services of other persons;

(ii)the use, or intended use, of the trade mark by the applicant;

(iii)any other circumstances.

1. Referring to my finding in the previous decision involving the divisional trade mark application, the Opponent’s submissions provided:

   There is no reason why the delegate would take a different view given the similarities between the Opposed Application and that the subject of the Previous Decision.

   The analysis does not relevantly change in the present [matter] because the goods under consideration all expressly relate to the promotion of or be associated with the game of football (soccer). These goods are of the type typically sold or supplied to promote the game of football (soccer).

2. The consideration under section 41 requires an assessment of the ordinary signification of the Trade Mark and whether it is adapted to distinguish the goods claimed in the specification from those of other persons. Despite the fact that the Trade Mark and the priority date is the same here as in the previous matter, I am in this instance considering the question in relation to the designated goods in classes 9, 18, 25 and 28 rather than in relation to services. The extent to which the Trade Mark is inherently adapted to distinguish is paramount to this finding, as it is evident that the Applicant does not have evidence of use before the priority date. If I find that the Trade Mark is to some extent, but not sufficiently, inherently adapted to distinguish the designated goods from those of other persons, then the Applicant is in principle able to provide evidence of use after the priority date and intended future use of the Trade Mark to enable its acceptance under the Act.

3. The Applicant’s representative submitted that the Trade Mark had at least some inherent adaptation to distinguish the designated goods:

   Clearly the Trade Mark has some inherent adaptation when it comes to a consideration of the Applicant’s Goods. The Trade Mark, being the name of a football club, cannot be directly descriptive of class 9, 16, 25 and 28 goods such as the Applicant’s Goods. It can be the name of a class 41 service, being the service of being a football club, but it cannot be the name of goods as diverse as mobile phones, debit cards, waistcoats and rattles.

   The Office is correct that there must be some adaptation to distinguish the Trade Mark for those goods….

4. The test of whether the Trade Mark is ‘directly descriptive’ of the designated goods is not the end of the consideration under section 41. When the majority of the High Court of Australia in the case of Cantarella[6] used the expression ‘directly descriptive’ they were doing so in the context of setting out the historical progression of the question of distinctiveness. No doubt words which are ‘directly descriptive’ of the goods/services are not inherently adapted to distinguish (such as ‘rohoe’ for agricultural implements), while on the other hand words which are ‘allusory’ (such as ‘TUB HAPPY’ in relation to garments) may be inherently adapted to distinguish, but these are not the only considerations under section 41 of the Act. The structure of section 41 of the Act indicates there is a continuum of the capacity of trade marks to distinguish, ranging from those which are inherently adapted to distinguish, those which are to some extent inherently adapted to distinguish, and those which are not to any extent inherently adapted to distinguish.

   [6] Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48.

5. The matters that must be taken into account in the consideration of inherent adaptation to distinguish include the nature of the range of goods and services in respect of which registration is sought.[7] It is accordingly relevant that registration of the Trade Mark is sought in relation to goods rather than services. The specification of goods for the Trade Mark includes a broad range of products, from mobile phones to spectacles in class 9, leather bags, covers and animal leashes in class 18, clothing, footwear and headgear in class 25 and toys, sporting equipment and Christmas crackers in class 28. However, as mentioned earlier, the application of the Trade Mark upon or in relation to all these goods should be viewed in the context of products that have a connection with the game or sport of football (soccer).

   [7] See Kenman Kandy (Australia) Pty Ltd v Registrar of Trade Marks (2002) 56 IPR 30, [84].

6. Mr Round has accurately pointed out that the goods are not directly described by the Trade Mark, but I find that it nevertheless does indicate the origin and nature of the goods. I would also note that the majority of the designated goods are the types of products that a soccer club might reasonably offer to customers for fund raising or promotional activities ancillary to the provision of its services.

7. The ordinary signification of the Trade Mark is that it indicates these particular goods originate from a football club based in the city of Melbourne. Other persons in the Melbourne football fraternity are likely to desire to use the Trade Mark for the sake of that signification upon or in relation to the same or similar goods. Having said that, as it has been claimed in relation to goods (and not, say, club services), I find that the Trade Mark is to some extent, but not sufficiently, inherently adapted to distinguish and that it should accordingly be assessed under section 41(4) of the Act.

Evidence of use on the Designated Goods

1. As the Opponent’s written submissions did not address the adequacy of the evidence of use, Mr Round argued that the Opponent appeared to be conceding that the Applicant should succeed in overcoming this ground of opposition given the finding of the examiner. At the hearing, Mr Horak argued that this was not the Opponent’s position, pointing out that I was not in any event bound by the previous decision made in examination.

2. For completeness, I would also point out that once the lack of sufficient inherent adaptation of the Trade Mark to distinguish the designated goods had been established, it is for the Applicant then to demonstrate that the Trade Mark does or will distinguish those goods because of its actual and/or intended use. This means, in effect, that it does not matter if the Opponent had remained silent on this particular point.

3. The Trade Mark was filed on 16 January 2014 and, I have found that it has some inherent capacity to distinguish the designated goods. I must therefore consider its actual and intended use (on the basis of evidence contained in declarations dated from 2015 and July 2016).

4. The possible uses of a trade mark in relation to goods is not limited to use directly on the goods themselves but also in physical or other relation to the goods.[8] Such use may include use of the trade mark in correspondence, advertisements, invoices and other documents circulated in connection with the goods.

   [8] Section 7(4) of the Act.

5. The Applicant has supplied a large volume of evidence but, as it transpires, only a portion of it is directly relevant to the particular consideration before me. The evidence demonstrates that it was not until June 2014 that the soccer club previously known as ‘Melbourne Heart’ was officially renamed ‘Melbourne City Football Club’. All demonstrated use therefore falls after the priority date.

6. Mr Round highlighted the increase in the Applicant’s average home attendance from the 2014-2015 football season to the 2018-2019 season, along with the increase in average membership of the club. In addition, the average viewership of a particular match on SBS was highlighted and the particular marketing spend for the Applicant over 2014-2015.[9]

   [9] Munn 1, at paragraph 17.9.2(e) and further information contained in confidential exhibit SM-18.

7. On behalf of the Applicant Mr Munn declares:

   Since 5 June 2014, the Applicant has consistently and continuously used the Trade Mark on all goods and services, as the Trade Mark is the name of the football club.[10]

   [10] Munn 1, [14].

8. As support for this statement, Mr Munn highlighted in his declaration that the Trade Mark appears prominently on the players’ match day, warm up and training uniforms. He also attests that the Trade Mark appears on signage including flags, posters and banners. Despite the above unqualified statement of use, the majority of the evidence of use upon or in relation to the goods is in fact use of the following trade mark:

(‘the Logo Trade Mark’)

1. The Logo Trade Mark is not substantially the same as the Trade Mark (although the annulus incorporates the Trade Mark).[11] Considering the examples provided, I find that all use of the expression ‘Melbourne City FC’ or the Trade Mark is accompanied by the Logo Trade Mark. In short, based on the evidence before me I cannot be satisfied that the Trade Mark alone is performing the function of distinguishing the designated goods from those of other traders.

   [11] See section 7(1) of the Act.

2. To illustrate the point with specific examples, exhibit SM-24 to Munn 2 displays on-field apparel for sale bearing the Logo Trade Mark as a badge on the breast of the player’s shirts. This is the same case for the Applicant’s caps and the Applicant’s scarves which also bear the Logo Trade Mark and either the expression ‘MELBOURNE CITY FC’ or ‘MELBOURNE CITY’. The Applicant’s tie, bar glasses, mugs, plush teddy bears, soccer balls, drink bottles, keyrings and notepads all appear to bear the Logo Trade Mark alone. The same can be said of the Applicant’s lanyards and flags within exhibit SM-25.  Whilst I accept that some of the above instances may constitute use upon or in relation to the goods, the fact that the Trade Mark (or an expression substantially the same to it) invariably appears in close conjunction to the Logo Trade Mark dilutes the effect of such use as a trade mark.

3. The Applicant’s “Player Kit” was adopted in 2014 and is worn by players within the club. The particular exhibit displaying this kit is almost illegible and appears to feature the Logo Trade Mark only. Further, it is arguable whether such examples constitute use in the course of trade in relation to clothing if they are only designed to be worn by players within the club. The Applicant’s evidence also features tickets for football events involving the Applicant’s club. The ticket itself features the Logo Trade Mark again and features the names of the teams playing (e.g. ‘Melbourne City FC v Western Sydney’). Taken in this context, such examples are not use as a  trade mark in relation to the designated goods and are not use of the Trade Mark as applied for in any event.

4. Mr Munn describes the sale of official merchandise featuring the Trade Mark as a key revenue stream for the Applicant.[12]  This is undoubtedly true as it is clear that upon rebranding in 2014 - fans of the Applicant’s club replaced their old merchandise, resulting in a significant spike in sales of these goods. I mention that the Applicant’s official merchandise is available for sale at prominent retailers such as ‘Rebel Sport’, ‘Amart All Sports’, ‘Best & Less’, ‘Team Fever’ and ‘This is Football’.

   [12] Munn 2, [16.13].

5. In addition to the above, the 2014-15 membership packages for fans of the Applicant’s club included a personalised membership card, lanyard, ticket wallet, fixture magnet, bumper sticker, keyring and lapel pin. Once again, all of the items prominently feature the Logo Trade Mark sometimes with (but more often without) the name ‘Melbourne City FC’.

6. In Pearce, the Applicant points to the evidence of a reputation in Australia on the strength of the reputation in the United Kingdom’s ‘Manchester City Football Club’ and fans of that club in Australia. The argument is that this evidence assists the consideration under section 41(4) of the Act as it provides an indication of how significantly the use of the Trade Mark on the goods will grow in the future. I have mentioned in my previous decision on the divisional trade mark application that such use does not assist the Applicant because:

   ‘Manchester City Football Club’ is not the same, or substantially the same, as the [Trade Mark]. This is not trade mark use because it constitutes an alteration that substantially affects the identity of the [Trade Mark].[13] I am not satisfied that the use of the name of another club assists the [Trade Mark] in demonstrating a capacity to distinguish the designated services.[14]

   [13] See section 7(1) of the Act.

   [14] MHFC Holdings Pty Ltd [2016] ATMO 96, [32].

7. The above comments are equally applicable in the current matter, despite the Applicant’s submissions that I am permitted to take into account this intended use in Australia. At most, an inference may be drawn that use of the Trade Mark is likely to increase in the future, but I am not convinced that such an inference is sufficient in the present case.  

8. While I have little doubt that the Applicant will continue to use the Logo Trade Mark and (perhaps to a lesser extent) the Trade Mark itself upon or in relation to some of the designated goods, I am not satisfied that the evidence demonstrates a sufficient basis currently for the Trade Mark to proceed to registration. There remains doubt regarding whether the Trade Mark is (or will be) operating as a badge of origin for the Applicant and also whether it is used, or intended to be used, for all of the goods claimed in the specification.

1. Accordingly, I find that the ground of opposition under section 41(4) of the Act has been established on the balance of probabilities.

2. A ground of opposition under the Act has been established and there is no requirement for the Registrar to address the remaining grounds of opposition pursued under sections 42(b), 58, 60 and 62A. However, in the event of an appeal to the court from this decision, those grounds (and others under the Act) are available to be pressed by the Opponent.

Decision

1. Section 55 of the Act relevantly provides:

55Decision

(1)Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

(a)to refuse to register the trade mark; or

(b)to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

having regard to the extent (if any) to which any ground on which the application was opposed has been established.

Note:For limitations see section 6.

1. A ground of opposition has been established under the Act. I refuse to register trade mark application no. 1601282.

Costs

1. I award costs against the Applicant under section 221 of the Act in line with the relevant items under Schedule 8 of the Trade Marks Regulations 1995.

Heath Wilson

Hearing Officer

Oppositions and Hearings

11 September 2017