Metropolitan Investment Group Pty Ltd v Autumnpaper Limited

[2018] ATMO 163

TRADEMARKSACT 1995

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

ReOppositions by Metropolitan Investment Group Pty Ltd to applications by Autumnpaper Limited for removal of trade marks 1479352 – CHRISTINE MCQUEEN and 1479355 CMQ (logo) – both in Classes 9, 10, 35, 44, 45 – in the name of Metropolitan Investment Group Pty Ltd

DELEGATE:                 Robert Wilson

REPRESENTATION:       Opponent: Michael Koch of Koch IP Pty Ltd

Applicant: Jonathon Feder of K&L Gates

DECISION:                   2017 ATMO 163

TradeMarks Act 1995 (Cth) - Section 96 opposition: opposition to applications for removal pursuant to s 92(4)(b) partially successful – use during relevant period established in respect of limited range of services – not appropriate to exercise discretion for remaining goods and services – interplay between s 72 and s 92(4)(b) considered in regard to validity of applications – trade marks to remain on Register for restricted specification

Background

1.Metropolitan Investment Group Pty Ltd (‘the Opponent’) is the registered owner of trade mark registrations 1479352 and 1479355 (‘the Challenged Trade Marks’). The Challenged Trade Marks are registered in respect of identical goods and services. Relevant details of the trade marks are as follows:

TradeMarkNumber:	1479352
FilingDate:	22 March 2012
Goods andServices:	See Annexure 1 (‘the Challenged Goods and Services’)
TradeMark:	CHRISTINE MCQUEEN	(‘the Word Mark’)

TradeMarkNumber:	1479355
FilingDate:	22 March 2012

Goods andServices:

See Annexure 1

(‘the Challenged Goods and Services’)

TradeMark:

(‘the Logo Mark’)

1. On 23 March 2017, Autumnpaper Limited (‘the Removal Applicant’) filed applications (‘the Applications’) based on s 92(4)(b) of the Trade Marks Act 1995 (‘the Act’) seeking removal of the Challenged Trade Marks from the Register. The Removal Applicant alleged that the Challenged Trade Marks were not used in good faith in relation to any of the Challenged Goods and Services during the three year period ending on 23 February 2017 (‘the Relevant Period’). The Opponent filed Notices of Opposition consisting of Notices of Intention to Oppose filed on 5 June 2017 and Statements of Grounds and Particulars which were filed on 4 July 2017. The Removal Applicant filed Notices of Intention to Defend the oppositions on 17 July 2017.

Evidence

3. The Opponent filed Evidence in Support in respect of its oppositions being:

·     In respect of the Word Mark:

o   a declaration made on 23 October 2017 by Christopher John Lee, a registered trade mark attorney with IP Solved (ANZ) Pty Ltd (who were the legal representatives of the Opponent at the time), with Exhibits CJL-1 to CJL-7 (‘Lee 1’).

·     In respect of the Logo Mark:

o   a declaration made on 23 October 2017 by Christopher John Lee with Exhibits CJL-1 to CJL-6 (‘Lee 2’).

4. The Removal Applicant did not file any evidence.

5.As is their right, once the time allowed for filing evidence had ended the parties requested to  be heard.  I  heard  the  matters together  on 22  August  2018  as a

delegate of the Registrar of Trade Marks. Michael Koch of Koch IP Pty Ltd appeared for the Opponent. Jonathon Feder of K&L Gates appeared for the Removal Applicant. Both representatives’ oral submissions were supplemented by written submissions which were filed prior to the hearing.

The Opponent

6.According to Lee 1, Madison Ashton is the sole proprietor of the Opponent. It is apparent from the evidence that Ms Ashton used the name Christine McQueen in the provision of her services. A copy of a page of a website at which is exhibited in Lee 2 contains the following text:

Christine McQueen, has over a decade of experience in the industry, both locally and internationally. Christine is one of the most sought after, highly regarded escorts in Australia. The women who work for her are cut from the same cloth.

The Removal Applicant

7.The Removal Applicant has filed no evidence from which a background might be provided; however, Exhibit CLJ-5 to Lee 1 is a copy of an Office opposition decision concerning the same parties and the same trade marks.1 It was indicated in that decision that the Removal Applicant ‘is the owner of the fashion brand ALEXANDER McQUEEN’ and that:

The brand was founded by Mr Lee Alexander McQueen in 1992. Mr McQueen was a British fashion designer who became well known in the fashion industry prior to his death in 2010. He won numerous awards including British Designer of the Year on multiple occasions …

11 Autumnpaper Ltd v Metropolitan Investment Group Pty Ltd [2015] ATMO 82.

8.The Removal Applicant is the owner of a number of registered trade marks including those detailed below:

Registration Number	Trade Mark	Priority Date	Classes
1040993	ALEXANDER McQUEEN	24 October 2003	14, 18, 25
1468456	22 December 2011	3, 9, 14, 18, 25, 35

The earlier oppositions

9.Registrations of the Challenged Trade Marks were opposed by the Removal Applicant by Notices of Opposition filed 12 October 2012. The decision in that matter was issued on 8 September 2015. Grounds of opposition under ss 44, 60 and 62A were pursued: none was established. Accordingly, the Challenged Trade Marks proceeded to registration.

Legal Framework

1. Part 9 of the Act governs the removal of trade marks from the Register for non-use. The sections of Part 9 which are most relevant to the case in hand are ss 92, 96, 100 and 101.

1. The removal applications specified that they were made according to the provisions of s 92(4)(b). Section 92 relevantly provides:

   Section 92.  Application for removal of trade mark from Register etc

   (1)    … a person may apply to the Registrar to have a trade mark that is … registered removed from the Register.

   (2)The application:

   (a)  must be in accordance with the regulations; and

   (b)    may be made in respect of any or all of the goods and/or services in respect of which the trade mark may be, or is, registered.

   …

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

…

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

(i)used the trade mark in Australia; or

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

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

Note 1: For file and month see section 6.

1. Sections 100(1)(c) and 100(3) of the Act indicate that the Opponent bears the onus of rebutting the allegations made under s 92(4)(b), either by establishing that the Challenged Trade Marks were used in good faith in Australia during the Relevant

   Period, or that there was a relevant obstacle to use. I proceed on the basis that the standard of proof required is on the balance of probabilities.2

1. Section 101(1) provides the Registrar with the discretion to remove the Challenged Trade Marks from the Register ‘in respect of any or all of the goods

   … to which the [removal] application relates’. Section 101(3) explicitly provides that the Registrar has the discretion not to remove the Challenged Trade Marks (if the Registrar is satisfied that it is reasonable to do so), even if the grounds on which the application was made have been established.

Validity of the Applications

1. As a preliminary matter, the Opponent submitted that the Applications are not valid. Section 92(4)(b) requires that before an application for removal can be made the Challenged Trade Marks have ‘remained registered for a continuous period of 3 years ending one month before the day on which [the Applications] were filed’. Section 72(1) of the Act is relevant to the question of validity and states:

   Subject to subsection (2), the registration of a trade mark in respect of the goods and/or services in respect of which the trade mark is registered is

2 Following Gyles J’s approach in Pfizer Products Inc v Karam (2006) 70 IPR 599 with respect to oppositions under s 52 of the Act. See also the recent decision of the Full Federal Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [132]-[133] affirming Gyles J’s approach.

taken to have had effect from (and including) the filing date in respect of the application for registration.

Subsection (2) concerns convention claims and has no application in the present matter.

1. The Opponent submitted:

Whilst acknowledging the operation of Section 72(1) … Section 92(4)(b) does not simply refer to the trade mark having ‘had effect’ or having ‘been registered’. It is submitted that the addition of the words ‘has remained’ and ‘continuous period’ in Section 92(4)(b) must therefore mean something more/something other than what is provided in Section 72(1). … It is submitted that factually, [the Challenged Trade Marks were] not registered up until 24 December 2015. For example, on the (actual) date of 23 December 2015, [the Challenged Trade Marks were] not registered, irrespective of any (later) operation of Section 72(1). It is submitted therefore, [the Challenged Trade Marks] cannot factually have remained registered for a continuous period of three years ending one month before [the Applications] were filed on 23 March 2017, since such period would have  had  to  include  at  least  the  (actual)  date  of 23 December 2015, at which actual date, however, [the Challenged Trade Marks were] not registered.

I note that the trade marks were in fact entered on the Register on 14 December 2015 and that the registrations were advertised in the Journal on 24 December 2015. The Opponent’s error in this regard does not affect the thrust of its submissions.

1. A situation similar to that in which the Opponent finds itself was considered in respect of the Trade Marks Act 1955 (Cth) (‘the earlier Act’) in Hunter Douglas Australia Pty Ltd v Perma Blinds (‘Hunter Douglas’);3 the equivalent provisions in the earlier Act to ss 92(4)(b) and 72(1) being ss 23(1)(b) and 53(2). Hunter Douglas was an appeal from a decision of the Assistant Registrar who had dismissed an application for the removal of two trade marks for similar reasons to those submitted by the Opponent here. Kitto J stated:

   The Assistant Registrar was of opinion that while s 53(2) has the effect that any rights arising from the registration of a trade mark commence not from the date upon which the registration is effected but from the date of the lodgment of the application for registration, its provisions are not relevant to an inquiry under s 23(1)(b) as to the period during which a trade mark was registered. I find myself unable to share this opinion, for I think that s 23(1) and s 53(2) must be read together, so that the three

3 (1970) 122 CLR 49.

year period referred to in s 23(1) may begin on or after the date which is deemed to be the date of registration of the trade mark.

It is true, as the respondent's counsel has contended, that the terms of s 23(1)(b) are unambiguous; but the operation of s 53(2) is not limited to the resolution of ambiguities. Its manifest purpose is to control the meaning and application of every provision of the Act relating to the date of registration of the trade mark, except any provision, such as s 109, that cannot be so controlled because it makes a different provision for its own special purposes. A reference in general terms, without qualification, to a period during which a trade mark was a registered trade mark, far from excluding the application of s 53(2), provides a plain case for its application; for the operation of s 53(2) is that of an addendum or proviso to every provision of the Act for the purposes of which the date of registration of a trade mark needs to be ascertained and which does not itself prescribe a different method of ascertaining that date.

The view which found favour with the Assistant Registrar depends upon looking first at s 23(1)(b) by itself, and then treating s 53(2) as inapplicable because of the clear meaning which s 23(1)(b) as read by itself undoubtedly has. But, with respect, it is erroneous to begin by reading s 23(1)(b) by itself; it must be read always in the context of the whole Act, including s 53(2), and that means that in the very first reading of s 23(1)(b) the command of s 53(2) must be obeyed, since there is nothing to require otherwise.

It is said that s 23(1)(b) refers to a period during which a fact existed : ‘the trade mark was a registered trade mark’, and that the undeniable fact in the present case was that the trade mark was not a registered trade mark earlier than 21st February 1964. But to say this is to say what s 53(2) forbids you to say. You must deem the date of registration in the present case to have been 31st May 1962; and it is impossible at the same time to say that the trade mark was not a registered trade mark until 1964.

Section 53(2) is not a mere definition of the expression ‘the date of registration’. If it were, there might be room for a contention that as s 23(1)(b) does not use that expression s 53(2) has nothing to say to it. What s 53(2) does is notionally to alter a fact, and to require that the general provisions of the Act shall be applied accordingly. It is true, as the Assistant Registrar has observed, that after entry of the trade mark on the register, s 53(2) ensures that the rights which under s 58 depend upon the registration shall be treated as having accrued at the date of the application for registration; but that is not an exhaustive statement of what the subsection provides. In clear terms it requires that ‘for the purposes of this Act’ - for all the purposes of the Act including those of s 23(1)(b) - the date of the application is to be deemed the date of registration, except where the contrary is provided. The contrary is not provided in s 23(1)(b), either by its express terms or by any implication from its terms or subject matter.4

1. In the quote from Hunter Douglas provided above, Kitto J referred in the second paragraph to a ‘reference in general terms, without qualification, to a period during which a trade mark was a registered trade mark’. I am not persuaded that the parts of s 92(4)(b) of the Act to which the Opponent has drawn particular attention—‘has remained’ and ‘continuous period’—are qualifying terms

4 Ibid 51–52.

sufficient to warrant an interpretation of s 92(4)(b) which is contrary to Kitto J’s interpretation of s 23(1)(b) of the earlier act. Further, while s 72(1) of the Act does not include the words ‘for the purposes of this Act’, which appeared in s 53(2) of the earlier Act, I am of the view that the effect of the provision is the same. Neither does s 92(4)(b) provide for a method contrary to that found in s 72(1) for determining the period during which the Challenged Trade Marks have remained registered. I am satisfied that the Applications are validly made.

Consideration of the Applications

1. To successfully oppose the Applications the Opponent must establish that it, as the owner of the Challenged Trade Marks, has used the trade marks in good faith in the course of trade in respect of all the Challenged Goods and Services, and that this use occurred during the Relevant Period. The Relevant Period is crucial in a non-use matter. It is incumbent upon the Opponent to provide clearly dated evidence showing use of the Challenged Trade Mark ‘upon, or in physical or other relation to’, the Challenged Goods and Services5 within that period in order to rebut the allegation of non-use. Undated examples of use carry little, if any, weight in support of a claim for use of the trade mark within the Relevant Period. The Evidence in Support differs for the two trade marks; for convenience they are considered separately.

Use of the Word Mark

1. It is declared in Lee 1 that the Word Mark has been used by the Opponent ‘since at least 2005 in respect of escort and adult education oriented goods and services which are of a discrete (sic) nature’. Exhibit CLJ-2 to Lee 1 consists of some 21 pages of what are declared to be:

   historical samples of usage of [the Word Mark] from [the Opponent’s] website obtained from the internet archive wayback machine for the representative sample years prior to and including within the non-use period showing usage from 2011 up to 2016 being the last archived year with any historical extracts.

1. The samples provided in Exhibit CLJ-2 are variously dated within and without the Relevant Period. The samples show numerous images of Ms McQueen in various

5 See s 7 of the Act.

poses and in various stages of undress. Of those within the Relevant Period the samples include what appears to be the splash page of the Opponent’s website. The page bears the Word Mark prominently at the top with the words ‘Movie star face & Porn star body’ underneath. Beneath that appears ‘ENTER’ which is presumably a link enabling entry to the website. The following words also appear on the page: ‘This website contains material of an adult nature and is restricted to persons over the age of 18 years’.

1. Other samples of the website from Exhibit CLJ-2 also include the Word Mark along with laudatory remarks about Christine McQueen such as:

   She is elegant and exquisitely dressed. Impeccably groomed and polished. Her wardrobe is extensive, with a broad collection of seductive lingerie, sexy cocktail gowns, latex through to business wear, and importantly her collection of stilettos, so she can dress, or undress, for any occasion.

At the bottom of some pages is a graphic showing a scantily clad Ms McQueen and the  words  ‘AUSTRALIA’S  MOST  PRESTIGIOUS  ESCORT  AGENCY’.  This

appears to be a link to the Opponent’s other website which is discussed in connection with the Logo Mark, below. Apparently clickable links appear at the top of some pages including ‘HOME’, ‘PORTFOLIO’, ‘BOOKING’ and ‘CONTACT’. The samples provide ample information about Ms McQueen and leave little doubt as to the nature of the  services  offered.  The  link  labelled  ‘BOOKING’  suggests  that Ms McQueen’s services may be obtained by following the link.

1. The Removal Applicant has submitted that:

[I]f the Opponent’s evidence is accepted to show use of [the Word Mark] during [the Relevant Period], the use shown is limited to the following services:

Class 45: Adult personal services in this class including escort services; Personal services rendered by others to meet the needs of individuals; adult services, escort agencies, brothels; personal introduction services; on-line personal introduction services; agency services for arranging personal introductions; introductions agency services for arranging personal introductions; personal introduction agencies; personal introduction agency services.

I am satisfied that Exhibit CJL-2 shows use of the Word Mark during Relevant Period in connection only with those services listed by the Removal Applicant.

1. Exhibit CJL-3 is declared to be sample extracts from three social media sites—one page for each site. The samples from Instagram and Facebook are undated and do not assist the Opponent. The sample page from Twitter has tweets bearing dates such as Aug 19 and Aug 23. There is no year appended to the dates. In the absence of clear dates this exhibit does not assist the Opponent.

1. Exhibit CLJ-4 consists of some 27 pages and is declared to be:

a social media report from the website in relation to the Registrant's Twitter social media for the period between 31 March 2013 and 25 February 2015 as well as representative analytics information from the Registrant's Twitter social media such as Tweets, Tweet Impressions, profile visits, mentions and visits for the period June to October 2017 obtained from sample tweets in Exhibit CLJ-4 include such as:

AVAILABLE NOW! Melbourne – I am now available for short notice bookings. To book visit scarletblue.com.au/escort/christ…

The sample tweets in Exhibit CLJ-4 are dated in a manner  similar  to  those  in Exhibit CLJ-3; that is, they have a month and day but no year. This exhibit does not assist the Opponent.

1. Exhibits CLJ-5 and CLJ-6 are copies of earlier office decisions concerning the same parties. Exhibit CLJ-7 is declared to be a website article dated 16 February 2015 in relation to an estate matter that Maddison Ashton had commenced. None of these exhibits assists the Opponent.

Use of the Logo Mark

1. It is declared in Lee 2 that the Opponent has used the Logo Mark ‘since at least 2011 in respect of escort and adult entertainment oriented goods and services which are of a discrete (sic) nature’. Lee 2 exhibits documents which are similar in nature to those in Lee 1. Many of the exhibited documents suffer the same shortcomings regarding dates as found in the majority of the exhibits to Lee 1. However, Exhibit CJL-2 warrants further discussion.

1. Exhibit CJL-2 is declared to be:

historical samples of usage of [the Logo Mark] from [the Opponent’s] website obtained from the internet archive wayback machine for the representative sample years prior to and including within the non-use period showing usage from 2012 up to 2014, which is the last archived year with any available historical extracts.

1. Only one of the six samples is dated during the Relevant Period. There is a significant amount of text on the webpage in question which makes clear the nature of the services on offer. For example, the text on the page includes: ‘CMQ Escorts is a breath of fresh air in the adult sex industry’. Included on the example webpage are a telephone number for reservations and what is apparently a link labelled ‘BOOK ONLINE’. The example webpage bears prominently the trade mark shown below:

   ‘the Escorts Logo Mark’

2. The word ‘ESCORTS’ in the Escorts Logo Mark does not appear in the Logo Mark. I am satisfied the trade marks are otherwise substantially identical. Given the descriptive nature of the term ‘ESCORTS’ in connection with the services offered I am satisfied that any demonstrated use of the Escorts Logo Mark is use of the Logo Mark ‘with additions or alterations that do not substantially affect the

   identity of the trade mark’.6

1. The Removal Applicant made a similar submission in connection with the Logo Mark as it did in respect of the Word Mark, that is, if it is accepted that the Opponent’s evidence shows use of the Logo Mark during the Relevant Period that use is limited to the same services listed in para 22, above. I am satisfied that

6 Section 7(1) of the Act.

Exhibit CJL-2 to Lee 2 shows use of the Logo Mark in connection only with those services. The remaining exhibits do not assist the Opponent.

Conclusion on use

1. I am satisfied that the Opponent has rebutted the allegation of non-use against both the Word Mark and the Logo Mark in respect of the following services only:

   Class 45: Adult personal services in this class including escort services; Personal services rendered by others to meet the needs of individuals; adult services, escort agencies, brothels; personal introduction services; on-line personal introduction services; agency services for arranging personal introductions; introductions agency services for arranging personal introductions; personal introduction agencies; personal introduction agency services.

That is not the end of the matter, however, as it remains to consider the discretion available to the Registrar.

Registrar’s discretion

1. As indicated above, s 101(3) provides the Registrar with a discretion, which, in the words of Bennett J, is:

   a broad discretion to decide not to remove a trade mark from the Register or not to carve out some of the goods and services for which the mark is registered, even if s 92 grounds have been made out, if the Court [or Registrar] is satisfied that it is reasonable to do so. Irrespective of the lack of use of the trade marks on the removal goods and the removal services in the relevant period, there is a discretion not to alter the registrations.7

Her Honour also noted:

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

There is no limitation within s 101(3) on the discretion, nor any indication of the factors to be taken into account.8

1. While considering the discretion in E & J Gallo Winery v Lion Nathan Australia Pty Limited,9 Flick J stated:

7 Pioneer Computers Australia Pty Limited v Pioneer KK [2009] FCA 135, [167].

8 Ibid [171]-[172].

9 E & J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934.

Although the ‘guiding principle behind the discretion is public interest, particularly in the integrity  of the register’,10 the private commercial interests of both [parties] remain matters which may be taken into account when exercising the discretion. Trade mark law, it has been recognised, is more complex than is suggested by the proposition that the supreme—or at least—a predominant interest is the maintenance of the integrity of the Register.11 Speaking of the 1955 Act, Gleeson CJ, Gaudron, McHugh, Kirby, Hayne and Callinan JJ there pointed out the balance struck by the legislation between various interests. Both the interests of the consuming public and the interests of traders have to be recognised.12

1. The evidence—both that within and without the Relevant Period—strongly suggests that the Opponent is involved in the provision of only a narrow range of services. The Challenged Goods and Services, however, are extremely wide ranging. There is nothing in the evidence which satisfies me that it is the Opponent’s intention to branch out into goods or other services using either of the Challenged Trade Marks. It seems therefore, that there would be no hardship imposed upon the Opponent by removing the Challenged Trade Marks from the Register for all the Challenged Goods and Services save those services for which use during the Relevant Period has been established. It is not reasonable in my view that the discretion be exercised in the Opponent’s favour.

Decision

1. I decide that the Challenged Trade Marks be removed from the Register for all of the goods and services for which they are registered other than those listed above in paragraph 31. In the event of an appeal from this decision, the specifications of the Challenged Trade Marks will not be amended until the appeal has been discontinued or dismissed, or in the event of a decision from the court, the registrations will be subject to that decision.

Costs

1. Both parties have requested an award of costs in their favour. As each has had a measure of success, I decline to make an award of costs against either party.

10 Kowa Co Ltd v Organon [2005] FCA 1282, [92].

11 Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12, [40].

12 E & J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934, [210]. (Note that Flick J’s decision was overturned on appeal to the Full Federal Court, although not on this point.)

Robert Wilson Hearing Officer

Oppositions and Hearings 5 October 2018

Annexure 1

The Challenged Goods and Services

Class 9: Electronic and electrical equipment and apparatus including wireless telecommunications equipment for use with television set top units and receivers; apparatus capable of establishing a connection between telephone lines and television equipment; wireless apparatus, parts and associated accessories in this class; personal digital recorders; personal video recorders; hard drives; apparatus and instruments for downloading, caching, encrypting, imprinting, recording, transmission and reproduction of audio and visual images; magnetic data carriers; pre-recorded video cassettes, tapes, discs and other media; pre-recorded audio cassettes, tapes and discs and other media; CD-ROMs and DVD-ROMs; computer software programs, smart cards, phonecards and stored value cards; television apparatus and equipment including digital television apparatus and equipment; digital video and image recorders and television sets; multi media, video and movie projectors; photographic film; computer and video games; electrical, electronic and digital equipment (in this class) including televisions, video cassette recorders, hi-fi equipment, other equipment and apparatus for playing (or recording onto) video or audio cassettes, tapes or discs, and associated parts, fittings and accessories (in this class) for such goods; decorative magnets; television and telecommunications receiving equipment, video and audio products and apparatus including set top units, adaptors, couplings, cables, parts and accessories; equipment for receiving digital television program signals and interactive broadcasting services; Health education resources being CD ROM or DVD ; Electronic publications including those sold and distributed  online  including electronic publications relating to sexual and reproductive health for teenagers and young adults ; Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus ; Audio, visual and audiovisual recordings in relation to medical, health, psychological, disability, sexuality, sexual health, fertility, reproductive health and pregnancy issues; computer programs in relation to medical, health, psychological, disability, sexuality, sexual health, fertility, reproductive health and pregnancy issues; educational apparatus

Class 10: Sex aids, sex toys, condoms, massage apparatus, equipment and devices, vibrators for personal use, hygienic rubber products, articles conducive to erection and/or orgasm for use on the human body, sexual stimulation apparatus and instruments; contraceptives and prophylactics; body stimuli apparatus, equipment and devices, vibro massage and vibro stimuli apparatus and devices; Condoms; contraceptive, hygienic or prophylactic devices; Massage apparatus, instruments and appliances; electric and electronic massage apparatus, instruments and appliances; body massagers; personal massagers; vibrators; marital aids; sex aids; parts and fittings for all the aforesaid goods; condoms, contrivances made of natural or synthetic rubber or like materials for hygienic, prophylactic or medical purposes

Class 35: The bringing together, for the benefit of others, a variety of goods, enabling customers to conveniently view and purchase those goods; wholesaling and retailing of goods including by electronic means, the said goods including clothing, including lingerie, costumes, footwear and headgear, masks, soaps, perfumery, essential oils and cosmetics, personal lubricants, body oils, creams, gels, lotions, moisturisers, aftershaves, deodorants, anti- perspirants, aromatic and aromatherapy oils, bath concentrates, creams, cubes, lotions and oils, make-up, toiletries, photographic and cinematographic apparatus, equipment and devices, apparatus, equipment and devices for recording, transmitting, storing and reproducing sound and/or images, sound and image films, video tapes and video discs, cassettes, tapes, compact discs (CD's), digital video discs (DVD's), computer hardware and software, automatic vending machines and mechanisms for coin-operated apparatus, electronic games and electronic game apparatus, multi-media publications, sex aids, sex toys, condoms, massage apparatus, equipment and devices, vibrators for personal use, hygienic rubber products, articles conducive to erection and/or orgasm for use on the human body, sexual stimulation articles, apparatus and instruments, contraceptives and prophylactics, body stimuli apparatus, equipment and devices, vibro massage and vibro stimuli apparatus and devices, mannequin's, models and dolls, teaching apparatus and equipment, paper, cardboard and goods made from these materials, printed matter, books, magazines, periodicals and other publications, photographs, stationery, games including electronic games ; Distribution, including both wholesale and retail sales of adult products and erotica - including DVDs, adult leisure products, erotic toys, sex aids, books and publications and clothing including lingerie and shoes; retailing, may include direct sales, mail order, party plan (the sales of goods at private premises) and via the Internet by way of online sales; advertising services in respect to adult products and erotica and information, such as that regarding adult products and erotica in the nature of a buyers' guide will also be included; Managing databases; providing databases in respect of adult business services being compilation of information into computer databases; compilation, analysis and retrieval of data and information; advertising services; storage of data and information in respect of adult business services being data collection and compilation for others; bookshop services; career counselling

Class 44: Medical services including services related to sexual and reproductive health; nursing and paramedical services including services related to sexual and reproductive health; the coordination and provision of medical services for teenagers and young adults; medical and psychological counselling services in relation to sexual

and reproductive health for teenagers and young adults; provision of medical and psychological counselling and medical and psychological counselling advisory information, including such services provided on-line and with the use of the global communications network; Family planning; pregnancy and fertility testing; medical, health, psychological, disability, sexual and reproductive health counselling; mentoring services being in the nature of personal health and physical well-being services for persons with medical, health, psychological, disability, sexuality, sexual health, fertility, reproductive health and pregnancy issues; advocacy and advisory services in relation to medicine, health, psychology, disability, sexuality, sexual health, fertility, reproduction and pregnancy; health screening, health care ; Medical, psychological and health services; counselling services in this class including lifestyle, medical and psychological counselling; consulting in relation to health and well being; provision of therapeutic services to improve health and enhance life skills being personal therapeutic services to provide health, wellbeing and fulfilment of individuals; provision of information, advisory and consultancy services in relation to the aforementioned services; Lifestyle counselling, psychological counselling ; occupational health and safety services (therapeutic and rehabilitation services); rehabilitation services (health care); occupational psychology services; preparation of reports relating to health care and medical matters; counselling related to health and wellbeing issues

Class 45: Adult personal services in this class including escort services; Dating services ; Personal and social services rendered by others to meet the needs of individuals; adult services, escort agencies, brothels, massage parlours; personal introduction services; dating agencies; on-line dating services; dating services; marriage agencies; personal background investigations; on-line personal introduction services ; Computer dating services; Mutual support and self-help groups in relation to medical, health, psychological, disability, sexuality, sexual health, fertility, reproductive health and pregnancy issues being support groups to promote wellbeing of persons affected by the aforesaid issues ; marriage and relationship guidance and spiritual counselling; social work services; provision of information, advisory and consultancy services in relation to the aforementioned services; Lifestyle counselling (spiritual), marriage guidance counselling, life coaching (personal mentoring and support services), celebrant services, civil celebrants, mediation services for marital disputes; agency services for arranging personal introductions; introductions agency services for arranging personal introductions; personal introduction agencies; personal introduction agency services; providing information, including online, about personal and social services meeting the needs of individuals