Natures Farmacy Pty Ltd v Greenteam Holdings Ltd

[2024] ATMO 15

TRADE MARKS ACT 1995

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

Re:Opposition by Natures Farmacy Pty Ltd to registration of trade mark application number 2107070 (classes 5, 31) – EQUIFEAST’S COOL, CALM & COLLECTED – in the name of Greenteam Holdings Ltd

Delegate:

Debrett Lyons

Representation:

Opponent: Self-represented

Applicant: Wynnes Patent and Trade Mark Attorneys Pty Ltd

Decision:

2024 ATMO 15

Trade Marks Act 1995 (Cth) – opposition under section 52 – ss42(b), 43, 44, 58A, 60 and 62A – ss 58A and 62A considered and established – trade mark refused registration

Background

1. On 28 July 2020  (‘Relevant Date’) Greenteam Holdings Ltd (‘Applicant’) made application 2107070 (‘Application’) under s 27 of the Trade Marks Act 1995 (Cth)[1] to register  EQUIFEAST’S COOL, CALM & COLLECTED (‘Trade Mark’) in classes 5 and 31 for the following goods:

   Class 5: Supplements for animals including nutritional supplements, dietary supplements, food supplements; fortified foodstuffs for animals; foodstuffs containing added supplements, including vitamins and minerals, for animals; supplements containing chelated calcium, copper, cobalt, iodine, selenium, zinc; veterinary supplements for horses, dogs, cats and other domestic animals; beverages containing added supplements, including vitamins and minerals, for animals; pharmaceutical preparations containing supplements, including vitamins and minerals; veterinary preparations and substances; preparations including powders, sprays, drops, skin and fur treatment for animals; medicated skin treatments and preparations for animals; disinfectants for animals including medicated detergents; pesticides for animals; fungicides for animals; non-medicinal additives for use in food products for animals; powdered milk for babies

   Class 31: Agricultural, horticultural and forestry food products for animals; foodstuffs for animals including herbal foodstuffs; beverages for animals including herbal beverages; grains and seeds for animals; litter for animals; malt for brewing and distilling

   (‘Goods’)    

   [1] Any references to sections or regulations in this decision are references to sections or regulations of the Trade Marks Act 1995 (Cth) (‘Act’) or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

2. The Application was examined under s 33 and accepted for registration subject that the provisions of s 44(4) (‘Endorsement’), considered later.

3. Following advertisement of acceptance of the Application for possible registration, Julie Anne Cook opposed the Application under s 52, a Notice of Intention to Oppose filed on 3 June 2021 and a Statement of Grounds and Particulars (‘SGP’) on  5 July 2021.

4. During the course of the proceedings, Julie Anne Cook assigned her rights to Natures Farmacy Pty Ltd (‘Opponent’), a company of which she is a director. 

5. The Applicant filed a Notice of Intention to Defend the opposition on 8 October 2021.

6. The parties then filed evidence in accordance with the Regulations. The Opponent’s evidence in support consists of a Statutory Declaration of Julie Anne Cook made 11 February 2022 (Cook) with Exhibits JC-1 to JC-6.  The Applicant’s evidence in answer consists of a Statutory Declaration of Malcolm Green, director of the Applicant, made 10 May 2022 with Exhibit 1 to 9 (Green) and a Statutory Declaration of Ewen Wynne, trade mark attorney, made 16 May 2022 (Wynne).   The Opponent’s evidence in reply consists of a second Statutory Declaration of Julie Anne Cook made 19 July 2022 with Exhibits JC-1 to JC-5.

7. Following the conclusion of the evidence stage, the parties were given the opportunity to request a hearing.  The parties requested a decision without a hearing and relied upon written submissions.  This matter has been allocated to me as a delegate of the Registrar of Trade Marks to decide based on the aforementioned documents.

   Submissions, Evidence and Reasoning

8. In the SGP, the Opponent particularised grounds of opposition under ss 42(b), 43, 44, 58A, 60 and 62A.  In broad terms, the grounds hinge on either a likelihood of confusion, or proof of first use, or on the Applicant’s state of mind when the Application was filed. 

9. The Opponent bears the onus of establishing at least one of the nominated grounds of opposition.[2]  The standard of proof is the ordinary civil standard of the balance of probabilities.[3]

   [2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

   [3] Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

10. The parties are competitors in the same market both selling, amongst other things, products with calming benefits for horses. 

11. The Opponent is the owner of Australian trade mark registration 1733966 (‘Registration’) for the trade mark, COOL CALM AND COLLECTED (‘Opponent’s Mark’), with a filing date and priority date of 11 November 2015.  The Registration is in class 5 of the Register for the following goods:

    Amino acids for veterinary purposes; Animal care products for veterinary use; Capsules for veterinary pharmaceutical preparations; Esters for use as veterinary preparations; Fodder additives for veterinary purposes; Lotions for veterinary purposes; Massage creams for animals for veterinary purposes; Medical foodstuff additives for veterinary use; Medicines for veterinary purposes; Oils adapted for veterinary use; Pharmaceutical preparations for veterinary use; Plant compounds for use as dietary supplements (veterinary); Preparations of plants for veterinary use; Probiotic bacterial formulations for veterinary use; Veterinary medicaments; Veterinary preparations; Veterinary preparations for administration by injection; Veterinary preparations for external application; Veterinary preparations for external use; Veterinary preparations for topical application; Veterinary preparations for use in improving the coat; Veterinary preparations for use in improving the skin; Veterinary preparations for use in treating the coat; Veterinary preparations for use in treating the skin; Veterinary preparations in dosage forms for veterinary use; Veterinary preparations in the form of powder; Veterinary products; Veterinary products for equines

    (‘Registered Goods’)

12. The Endorsement – decoded – was a sign that this Office had accepted the Trade Mark in spite of the earlier Registration because the examiner of the Application had been satisfied that the Applicant had continuously used the Trade Mark before 11 November 2015, the priority date of the Registration. Acceptance of the Application subject to the Endorsement caused the Opponent to be put on notice in writing by this Office of the acceptance of the Application.

13. Evidence was required to support the examiner’s acceptance of the later filed Application and I observe that the Applicant has relied in these opposition proceedings on some of the same evidence previously presented to the examiner[4].  These proceedings differ from the examination stage in various ways which include a ground of opposition (s 58A) whereby the Opponent might show itself to ultimately be the more senior user of the Opponent’s Mark.

    [4] Declaration of Ewen Wynne made 31 March 2021 with Exhibits 1 to 5.

14. On behalf of the Applicant, Green is a strictly confidential declaration.  He states that the Applicant “was assigned the intellectual property rights [in the Trade Mark] from Calinnova Limited in 2017.”  I stop there to observe that filed out of time and along with the Applicant’s written submissions on 20 November 2023, was a copy of what was described as a Deed of Assignment (not, in fact, a Deed) dated 1 January 2017 between Calinnova Limited and the Applicant.  The Schedule to the agreement includes UKIPO Registration 010786606[5] for the stylised iteration of the Trade Mark (shown below) as one of many properties transferred to the Applicant on that date.

    (“UK Registration”)

    [5] The number is incorrect.  It is Registration 00910786606 from 4 April 2012.

15. Green continues, stating  that:

    “the Applicant has been advertising and selling these supplements bearing the trade mark EQUIFEAST’S COOL CALM & COLLECTED in United Kingdom and Australia. The EQUIFEAST COOL CALM AND COLLECTED product was described and offered for sale on the website, from at least 28 February 2006. I attach a copy of extracts from the Wayback Machine which shows snapshots of archived website of from 28 February 2006 in Exhibit 1. … The website was accessible to people living in Australia at that time.”

16. It is this website use on which the Applicant relies as establishing a date of first use in Australia.  Whilst I accept that the website may have been visible to Internet users in Australia from 2006 onwards, that fact alone is not enough to establish use in Australia.  The case of Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 concerned the hair product “Restoria” which Ward Group owned in Australia. Brodie & Stone owned the mark in the UK. The issue of relevance to the case before me now was the question whether Brodie & Stone had infringed Ward Group’s trade mark rights by advertising “Restoria” marked goods on a website accessible in Australia. In the Federal Court, Merkel J held that “the use of a trade mark on the internet, uploaded on a website outside of Australia, without more, is not a use by the website proprietor of the mark in each jurisdiction where the mark is downloaded”.[6]  

    [6] [2005] FCA 471, [43].

17. Whilst Merkel J went on to concede a possible exception in circumstances where the evidence shows that the use was directed to, or targeted at, a particular jurisdiction, the evidence before me is that it was not until 2017, after the priority date of the Registration, that the website made specific provision for Australian sales.

18. It was not until 2012 that actual sales of the Applicant’s products in Australia occurred and, not then via the website, but instead by authorised re-sellers.  Green explains that:

    “[t]he Applicant has been selling their supplement products showing the trade mark EQUIFEAST’S COOL CALM & COLLECTED in Australia through different retailers including T&L Wozencroft. Majority of the Applicant’s supplement products go through T&L Wozencroft. T&L Wozencroft has been the Applicant’s retailer since 2012 which is the beginning of their business in Australia.

    …

    The Applicant has been using the [Trade Mark] which is the subject of the present trade mark application in respect of supplement products in Australia since at least 12 October 2012.”

19. The Opponent is critical of much of the Applicant’s evidence of use which, it is said, suffers various shortcomings which include (i) use outside Australia which does not bear directly on the grounds of opposition, (ii) evidence which is undated, (iii) evidence which postdates the priority date of the Registration and sometimes the Relevant Date as well, (iv) evidence which does not show the applied-for Trade Mark, and (v) evidence which shows other trade marks used by the Applicant. 

20. Wynne is essentially argumentative and adds nothing in terms of proof of first use.  I will return to it later for other reasons.

21. I can well understand the Opponent’s criticism of the Applicant’s evidence but, for the moment at least, I need not examine that material in detail.  The Opponent asserts that it has used the Opponent’s Mark for the Registered Goods since 2008, before the Applicant’s use of the Trade Mark in Australia, and if that is shown to be so then it supersedes further discussion of the Applicant’s evidence.

22. On my reading of the Opponent’s evidence and submissions, it has given primacy to its ground of opposition under section 58A.  I observe that s 44 is also a ground and there is a relationship between ss 44 and 58A such that I should say something – at least summarily – of s 44 first in order to give the s 58 ground context and meaning.  Section 44 prevents the registration of a later filed conflicting trade mark.  To successfully oppose the Application pursuant to s 44 the Opponent must establish that the Registration:

    ·     has a priority date which is earlier than that of the Trade Mark (‘first requirement’);

    ·     is substantially identical with or deceptively similar to the Trade Mark (‘second requirement’); and

    ·     is in respect of similar goods, and/or services which are closely related to, the Goods (‘third requirement’).

23. The first requirement is manifestly satisfied. 

24. The second requirement raises the question whether the compared marks (set out below, side by side) are either substantially identical or deceptively similar:

    EQUIFEAST’S COOL, CALM & COLLECTED              COOL, CALM & COLLECTED

25. The test for determining “substantial identity” was articulated by Windeyer J in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd:

    In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[7]

    [7] [1963] HCA 66, [12].

26. I find that by reason of inclusion of the term, “EQUIFEAST’S”, in the Trade Mark, a total impression of dissimilarity emerges and so find that the marks are not substantially identical.

27. Deceptive similarity is defined by s 10 which states “[f]or the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion”.  The determination of deceptive similarity requires a comparison of the impression persons of ordinary intelligence and memory would have, in recalling the Opponent’s Mark, to the impression they would get from the Trade Mark.[8] 

    [8] The Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd [1963] HCA 66; (1961) 109 CLR 407, 415 (Windeyer J).

28. The Opponent’s Mark comprises a quantitatively significant part of the Trade Mark.  Admittedly, not the first words of the Trade Mark - sometimes an influential factor - nor the only part of the Trade Mark to which the public would pay attention, but materially significant enough that there exists a risk of confusion.  I do not accept the submissions made by the Applicant’s representative in Wynne that  COOL, CALM & COLLECTED:

    “… cannot be considered the use of a trade mark because it is a descriptive phrase (based on a colloquial expression) of a product that has a calming effect. … Cool, calm and collected by itself is a description and consequently cannot be used as a trade mark because other traders are likely to use it to describe their products.”

29. Not only has COOL, CALM & COLLECTED been examined under s 41 and registered, but in spite of being a colloquial expression, it is eminently suited to function as an indication of trade source for the Registered Goods and in my assessment is a relatively distinctive trade mark.

30. Moreover, and as both parties have argued, EQUIFEAST, a trade mark which the Applicant has separately registered, would in the context of the comparison of the marks most likely be understood by the public for what it is – the Applicant’s “house” mark – something underscored by the possessive form of the word adopted in the Trade Mark, with the result that there is every likelihood that the marks would be assumed to come from the same trade source.

31. I find that the Trade Mark so nearly resembles the Opponent’s Mark that it is likely to deceive or cause confusion and so I find that the marks are deceptively similar.  The second requirement is met.

32. In relation to the third requirement, s 14 provides that goods are similar to other goods (a) if they are the same as the other goods; or (b) if they are of the same description as that of the other goods.

33. The class 5 Goods of the Application are all similar to the Registered Goods with the exception of “powdered milk for babies”.  Further, I find that the class 31 Goods of the Application are similar to the Registered Goods, with the exceptions of “litter for animals” and “malt for brewing and distilling”.

34. I note here that the examiner of the Application cited the Registration against the Application and found all the Goods similar to the Registered Goods but I see classification issues which may at the time have obscured closer comparison. 

35. Therefore, on the face of it, the Opponent would succeed under s 44 for essentially all of the Goods were it not for s 44(4) which, as described above, allows the Applicant to establish prior continuous use. As noted already, the examiner applied s 44(4) since the declaration provided to her stated that the Trade Mark “has been used in Australia since 2012 and evidence demonstrates use from at least September 2014; which is earlier than the priority date of the cited mark”.

    Section 58A

36. Section 58A was introduced into the Act by amendment to address the apparent lacuna in the legislation where an opponent may itself have used the trade mark first in time but has no chance under the examination process to show that. Simplified to suit the circumstances here, the section states that where an application has been accepted because of s 44(4), registration of that trade mark may be opposed on the ground that the owner of a deceptively similar mark first used it for similar goods before the applicant of the accepted case used it’s mark.

37. Cook states that:

    “The Opponent has used its mark “Cool Calm and Collected” in respect of the goods claimed in Category 5, in Australia since as early as 2008 and has a filing priority date of the 11th of November 2015. The Opposed Application was filed on the 28th of July 2020. Accordingly, the Opponent’s Trade Mark has an earlier priority date.

    Whilst the Opposed Mark may have been accepted in accordance with section 44(4) of the Trade Marks Act 1995 (Cth) the Opponent maintains the position they have owned and used their trade mark prior to the Applicant.

    The Opponent has used Trade Mark No 1733966 prior to the registration of the Trade Mark and has done so continuously since as least as early as 2008.”

38. Cook shows to my satisfaction continuous use of COOL, CALM & COLLECTED since mid 2008.  I do not accept the criticism in Wynne that it is not evidence of trade mark use “because the words are descriptive”.  Nor do I accept the criticism that “providing of photocopies of invoices that are unsubstantiated and unsupported by a third party must be disregarded as their authenticity is questionable and is not credible evidence.”  The invoices are clear and, to the degree that some of the evidence lacks proof of the actual goods to which the mark applies, I find ample corroboratory evidence in Cook of those goods and of the link between the Opponent’s Mark and those goods.

39. I find all the elements of s 58A satisfied with the exception of those Goods in classes 5 and 31 identified in [33] above (“Remaining Goods”).  What remains is to examine whether any of ss 42(b), 43, 60 and 62A are established in respect of the Remaining Goods.  However, before doing so I must consider a residual issue under s 44 arising from the Applicant’s submission that it may still be possible for the Registrar to allow the Trade Mark to proceed to registration if the Registrar is satisfied, pursuant to s 44(3)(a), that there has been honest concurrent use of the Trade Mark.

40. In its written submissions, the Applicant states that:

    “[w]hile the Applicant accepts there are conflicting decisions in the Trade Marks Office regarding the interaction between s 58A of TMA and the other exceptions under s 44, it submits the view that should be preferred is that the operation of section 58A does not exclude registration of a mark pursuant to section 44(3). In the Trade Marks Office decision of Australian Broadcasting Corporation v Commercial Radio Australia Ltd 40 [2010] ATMO 46, the delegate found:

    “... the wording of the [s 58A] now indicates a clear intention to prevail over the applicant’s prior use established under s 44(4). There is no equivalent provision relating to the treatment of s 44(3)(a) ... I do not think that it [s 58A] precludes the honest concurrent use provisions”

    Robertson J in the Federal Court of Australia in Ceaserstone Ltd v Ceramiche Caesar SpA (No 2) [2018] FCA 1096, adopted that same approach to the operation of s 58A and his Honour indicated that ‘the operation of s 44(3) is not excluded by s 58A’. The Applicant submits the delegate should adopt this approach as there is Federal Court authority concerning the operation of the provision.

1. In Ceaserstone Ltd v Ceramiche Caesar SpA, the applicant submitted that if the Court found that the CÆSAR Device mark could be cited against the Caesarstone marks pursuant to s 44, it then relied on s 44(3)(a) in the face of s 58A.  The Court’s decision is not compelling on this issue, Robertson J merely stating that “I accept the submission on behalf of Caesarstone that s 58A is limited in this way and the operation of s 44(3) is not excluded by s 58A”.[9]   More convincing is that passage from Burrell and Handler’s text, Australian Trade Mark Law, where the authors opine that:

   “there is nothing in either the language or history of s 58A to suggest that it was intended to displace the operation of the ‘honest concurrent use’ … .  In other words, even if the opponent succeeds on the basis of s 58A, it ought to be open to the applicant to be able to convince the hearing officer that that the mark should nonetheless be registered by virtue of s 44(3)(a) … .”[10]

   [9] At [965].

   [10] Australian Trade Mark Law, Burrell and Handler, Oxford, 2^nd ed 2016, at p 282.

2. That said, the same authors then offer a detailed examination of the s 44(3) exception and question in particular its relationship with other grounds of opposition, concluding that:

   “[t]he language and structure of the Act strongly suggest that the provisions … serve only as exceptions to the normal operation of s 44 … the proposition that s 44(3)… can be read at large is unsustainable…”.[11]

   [11] Ibid., at p. 290 ; see also the discussion in the paper delivered by Andrew Fox to the 2016 IPSANZ Annual Conference, “REPUTATION RUNAROUND - LIMITATIONS, ADVANTAGES AND REACH OF SECTION 60 OF THE TRADE MARKS ACT 1995”.

3. The issue has been considered by the Law Council and was left unresolved by the 2006 Amendments to the Act and so, on balance, I accede to the Applicant’s request that s 44(3)(a) be taken into account. In assessing honest concurrent use I must have regard to the following: the honesty of the concurrent use; the extent of the use in duration, area and volume; the degree of confusion likely to ensue; whether any instances of confusion had, in fact, been proved; and the relative inconvenience which would be caused to the parties by the allowance or denial of the registration.

4. The Opponent’s repeated complaint is that, for much of the evidence, the Applicant is not using the Trade Mark but is, instead, using the Opponent’s Mark.  I am largely in agreement with that assessment.   There is regular use of the trade mark of the UK Registration (above at [14]) with the element, “Equifeast’s”, removed (“Cool, Calm & Collected Logo”).  There is regular use of the words “Cool, Calm & Collected” (initial capitals).  There is use of the word, “Equifeast”, in literature or signage and sometimes in proximity to the words “Cool, Calm & Collected” or the Cool, Calm & Collected Logo.  Sometimes the letters, “CCC”, which the Applicant has separately registered and which it states “stand for ‘Cool, Calm & Collected’”, are interposed between “Equifeast”/“Equifeast’s” and the words “Cool, Calm & Collected” or the Cool, Calm & Collected Logo.  But for all of that, there is a noticeable shortage of evidence of use of the Trade Mark per se. 

5. On 28 June 2012, Calinnova Ltd, the Applicant’s predecessor in business, made application 1499137 for EQUIFEAST.  It is now registered to the Applicant.   On 24 July 2012 application 1504133 for the Cool, Calm & Collected Logo was filed by Calinnova Ltd but was later withdrawn after a s 44 citation of registration 910521 for “Cool & Calm” in the name of a third party.  An eight year period passed before the Application for the Trade Mark was filed.  During that eight years the Applicant established and continued to supply authorised re-sellers in Australia.  During that eight years – and, again, frustrated from saying more by the confidential claim also found in Cook – there is a public face to the Opponent’s business and public visibility of the Opponent’s Mark.

6. In its written submissions, the Opponent states that:

   The present application filed by the Applicant is deceptively similar to the Opponent’s registration 1733966 and also earlier registration 910521. The present application has only been filed in this form in an attempt to distinguish this application from the earlier registered trade marks. … What is clear, is that this application is merely a colourable attempt to circumvent the existing registrations on the Register. …

7. Taking account of the specialised nature of the Goods, together with the evidence that the Applicant/the Applicant’s predecessor in business were professionally represented when applications 1499137, 1504133 and this Application were filed, I find it more probable than not that, at the Relevant Date, the Applicant was aware of the Opponent’s Mark.  However, it is well established that use of a trade mark may be honest even though it commenced with knowledge of the prior trade mark.[12]  Equally, honest use does not become dishonest simply because an applicant became aware of the existence of a similar mark.[13]   But, as stated in Burrell and Handler, “the honesty of the applicant’s use is the most significant factor, in that it acts as a threshold requirement … honesty needs first to be established”.[14]

   [12] Alex Pirie & Sons Ltd’s Application (1933) 50 RPC 147 at 159.

   [13] Ceaserstone Ltd v Ceramiche Caesar SpA (No 2) op. cit. at [977].

   [14] Australian Trade Mark Law, Burrell and Handler, op. cit. at p 283.

8. When I couple the Applicant’s likely awareness of the Opponent’s Mark with the Applicant’s ongoing attempts at registration, and the evidence of actual use, I am drawn to make the same assessment as that made by the Opponent – that the Trade Mark is a collage which was presented to the Office in the hope of acceptance and is not representative of the way the Goods have, in the main, been marked.   I find that the use was not honest and so I refuse to apply s 44(3).

   Section 62A

9. Section 62A provides:

   62A  Application made in bad faith

   The registration of a trade mark may be opposed on the ground that the application was made in bad faith.

10. In Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) Dodds-Streeton J made the following comments:

    … The words ‘bad faith’ suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[15]

    …

    … the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand, or unconscientious character.[16]

    [15] [2012] FCA 81, [147].

    [16] Ibid [165]-[166].

11. It is established that bad faith can exist in the absence of dishonesty, but that dishonesty constitutes bad faith.  It is also established that bad faith infects the whole of the Application.[17]  Based on my earlier findings, I decide that the ground of opposition under       s 62A has been established in respect of the Remaining Goods.

    [17] Shanahan’s Australian Law of Trade Marks and Passing Off, Mark Davison and Ian Horak, Lawbook C. (7^th edition), p.475.

    Decision

12. Section 55 of the Act provides:

    (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.

13. The Opponent has established  grounds of opposition in respect of all of the Goods. Accordingly, I refuse to register trade mark number 2107070.  If the Registrar is served with a notice of appeal, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the application should otherwise be in accordance with the Court’s order or direction.

    Costs

14. Costs follow the cause and since the Opponent has been successful I award costs against the Applicant.

    Debrett Lyons

    Hearing Officer

    Delegate of the Registrar of Trade Marks

    30 January 2024