Opposition by Cosmetic Warriors Limited to application by Australian Therapeutic Supplies Pty Ltd for partial removal of trade mark number 724252 (3,5) - LUSH - in the name of Cosmetic Warriors Limited

[2021] ATMO 89

TRADEMARKSACT1995

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

Re:Opposition by Cosmetic Warriors Limited to application by Australian Therapeutic Supplies Pty Ltd for partial removal of trade mark number 724252 (3,5) - LUSH - in the name of Cosmetic Warriors Limited

DELEGATE:

Louise Tuohy

REPRESENTATION:

Opponent: Shauna Ross of Counsel

Applicant: Justine Beaumont of Counsel, instructed by Farr Intellectual Property

DECISION:

2021 ATMO 89

Trade Marks Act 1995 (Cth) – section 96 opposition to section 92(4)(b) application for partial removal in respect of all goods in class 5 – no use in the relevant period – discretion not exercised – registration to be

    removed for all goods in class 5  

Background

1. Cosmetics Warriors Limited (‘Removal Opponent’) is the registered owner of the following trade mark:

   Registration number:             724252

   Trade Mark:  LUSH (‘Trade Mark’)

   Filing date:  18 December 1996

   Specification:  Class 3: Perfumes; non-medicated toilet preparations; cosmetic preparations; lotions, powders and creams all for use on the skin; dentifrices; depilatory preparations; deodorants; toilet articles; preparations for care of the hair; shampoos; soaps; essential oils

   Class 5: Pharmaceutical preparations and substances; medicated products and preparations for the care of skin, hair, teeth and nails

2. Australian Therapeutic Supplies Pty Ltd (‘Removal Applicant’) applied on 13 September 2019 under the provisions of s 92(4)(b) of the Trade Marks Act 1995 (Cth) (‘Act’) seeking partial removal of the Trade Mark in respect of all goods in class 5 (‘Removal Goods’).

1. On 13 November 2019 the Removal Opponent filed a Notice of Intention to oppose the partial removal of the Trade Mark, followed by a Statement of Grounds and Particulars (‘SGP’) on 10 December 2019. On 6 February 2020 the Removal Applicant filed a Notice of Intention to Defend the partial removal application.

1. The Removal Opponent filed the following declarations as evidence in support and evidence in reply:

   ·Declaration of Nicola Karen Dear, Group Intellectual Property Manager of the Removal Opponent, made on 5 August 2020, with Exhibits NKD-1 to NDK- 32 (‘Dear 1 declaration’).

·Declaration of Nicole Karen Dear, made on 7 January 2021, with Exhibits NKD-1 to NKD-5 (‘Dear 2 declaration’).

1. The Removal Applicant filed the following declarations as evidence in answer:

   ·Declaration of Quentin Blades, Therapeutic Goods Consultant, made on 30 September 2020, with Annexures QB-1 to QB-26 (‘Blades declaration’).

·Declaration of Ann Cincotta, Registered Pharmacist, made on 23 October 2020, with Annexures AC-1 to AC-4 (‘Cincotta declaration’).

·Declaration of Clare Catherine Farr, Trade Marks Attorney and Consultant of Farr Intellectual Property for the Removal Applicant, made on 26 October 2020 (‘CFarr declaration’).

·Declaration of Malcolm John Farr, Legal Practitioner and Registered Trade Marks Attorney of Farr Intellectual Property for the Removal Applicant, made on 26 October 2020, with Annexures MJF-1 to MJF-76 (‘MFarr declaration’).

·Declaration of Graham William Porter, Managing Director of the Removal Applicant, made on 2 November 2020, with Annexures GWP-1 to GWP-188 (‘Porter declaration’).

1. I heard the matter in Canberra on 21 July 2021, as delegate of the Registrar of Trade Marks. Shauna Ross of Counsel appeared via video link on behalf of the Removal Opponent. Justine Beaumont of Counsel instructed by Malcolm Farr of the Farr Intellectual Property appeared

via video link on behalf of the Removal Applicant. The representatives’ oral submissions were supported by written submissions filed prior to the hearing.

Legal Framework

1. Part 9 of the Act deals with removal of trade marks from the Register due to non-use. In the partial removal application the Removal Applicant nominated the ground under s 92(4)(b) of the Act.

1. Section 92(4)(b) of the Act provides:

92 Application for removal of trade mark from Register etc.

(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.

1. For the purpose of s 92(4)(b) the relevant period is the three year period ending on 13 August 2019 (‘Relevant Period’).

1. Pursuant to s 100 of the Act, the Removal Opponent bears the onus of rebutting an allegation made under s 92(4)(b). The Removal Opponent can rebut that allegation by establishing that it used the Trade Mark in good faith in relation to the Removal Goods in the Relevant Period.1

2. In Woolly Bull Enterprises Pty Ltd v Reynolds,2 Drummond J observed that the expression ‘use in good faith’ has a well understood meaning in terms of s 92 of the Act, namely it is ‘real, as opposed to token, use in a commercial sense’. Provided the use is in good faith, ‘a single bona fide use of the mark’ may be enough to rebut an allegation of non-use.3 Little

¹ ss 100(2)(a) and 100(3)(a) of the Act.

² [2001] FCA 261, [16].

³ Ibid [17].

weight is to be given to assertions of use which are not supported by documentary evidence.4 In Nodoz Trade Mark, Wilberforce J said that if a registered owner relies on one single act of use of the trade mark, then that single act ought to be established by ‘if not conclusive proof, at any rate overwhelmingly convincing proof.’5

1. I proceed on the basis that the burden of proof is the ordinary civil standard of the balance of probabilities.6

2. In accordance with s 101 of the Act, I may decide to partially remove the Trade Mark from the Register in respect of any or all of the Removal Goods identified in the partial removal application, or if satisfied it is reasonable to do so, decide not to partially remove the Trade Mark from the Register.

Discussion

1. In the SGP the Removal Opponent particularises its rebuttal of the s 92(4)(b) ground as follows:

   1.    Since 1997, when the first LUSH store opened in Australia, the registrant has used its LUSH trade mark via its appointed authorised user in respect of a range of products falling predominately in class 3, but also covering allied goods, which fall in class 5.

2.   The LUSH mark has been used by the registrant via its appointed user in respect of a variety of handmade cosmetics, beauty and bath products, perfumes, bath and shower gels, toothpaste, deodorants, shaving creams, toners, moisturisers, lip balms, hand and body creams, foot creams, cleansers masks, scrubs, shampoos, conditioners and styling creams and pre-made gifts.

3.    A number of the products sold by the registrant by reference to its LUSH mark are considered to have medicinal or pharmaceutical properties such as to improve the condition of the treatment site, for example application of creams and lotions for topical application may be used to mitigate skin conditions.

4.   Certain of the registrant’s products contain ingredients having therapeutic properties such as being anti-inflammatory or antibacterial.

5.   The registrant’s goods are subjected to rigorous testing to ensure that safety and standards are met as per class 5 goods.

6 Certain of the registrant’s goods contain Aloe Vera and this factor is prominently disclosed in connection with its products and it is noted that the applicant proposes to use a LUSH mark

⁴ Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8.

⁵ (1962) RPC 1, [7].

⁶ Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ), albeit in respect of an action opposing registration rather than removal.

in relation to a lubricant containing Aloe Vera, which is proposed to be applied topically to a potential customer’s body surface such as skin or mucous membranes. Topical products include, but are not limited to, creams, foams, gels, lotions and ointments.

7. To the extent that the registrant cannot establish use of the LUSH mark in Australia during the relevant period in relation to all or some of the goods covered by the registration in particular the goods claimed in class 5 the subject to the present proceedings the registrant opposes removal of its registration for LUSH on the grounds that the Registrar should exercise discretion not to remove the registration at all having regard to the significant reputation in the registrant’s LUSH trade mark in Australia and other relevant factors.

1. In confining the evidence to documents dated within the Relevant Period, the Dear 1 declaration provides copies of tax invoices showing use of the Trade Mark in relation to the following products:

   ·Tax invoices for the sale of ENZYMION dated from 28 August 2016 to 9 March 2019.

   ·Tax invoices for the sale of DREAM CREAM dated from 28 August 2016 to 21 June 2019.

   ·Tax invoices for the sale of NEW CHARITY (CHARITY POT) dated from 4 January 2016 to 14 March 2019.

   ·Tax invoices for the sale of SLEEPY BODY dated from 26 October 2016 to 20 February 2019.

   ·Tax invoices for the sale of COSMETIC LAD dated from 28 January 2017 to 24 October 2018.

1. These tax invoices are all issued by Lush Australasia Retail Pty Ltd under the description ‘Lush Fresh Handmade Cosmetics’ and not in the name of the Removal Opponent. As such I am not satisfied that the Removal Opponent has directly used the Trade Mark for the Removal Goods in the Relevant Period. However, Note 1 to s 100(3) of the Act states that if the registered owner of a trade mark has authorised another person to use it, any authorised use of the trade mark by that other person is taken to be a use of the trade mark by the registered owner.

1. Section 8 of the Act defines an ‘authorised user’, and ‘authorised use’ as follows:

8 Definitions of authorised user and authorised use

(1)    A person is an authorised user of a trade mark if the person uses the trade mark in relation to goods or services under the control of the owner of the trade mark.

(2)     The use of a trade mark by an authorised user of the trade mark is an authorised use of the trade mark to the extent only that the user uses the trade mark under the control of the owner of the trade mark.

1. If the owner of a trade mark exercises quality control over goods or services:

(a)dealt with or provided in the course of trade by another person; and

(b)in relation to which the trade mark is used;

the other person is taken, for the purposes of subsection (1), to use the trade mark in relation to the goods or services under the control of the owner.

(4)    If:

(a)a person deals with or provides, in the course of trade, goods or services in relation to which a trade mark is used; and

(b)the owner of the trade mark exercises financial control over the other person’s relevant trading activities;

the other person is taken, for the purposes of subsection (1), to use the trade mark in relation to the goods or services under the control of the owner.

(5)    Subsections (3) and (4) do not limit the meaning of the expression under the control of in subsections (1) and (2).

1. This makes clear that use of the Trade Mark by an authorised user will only be taken to be use by the registered proprietor of the Trade Mark if the latter exercises control over the use of the Trade Mark during the Relevant Period so as to maintain a connection in the course of trade between the Removal Goods and the owner. That can be achieved if, for example, either quality control or financial control is exercised.7

2. The Dear 2 declaration states that Lush Australasia Retail Pty Ltd and Lush Australasia Manufacturing Pty Ltd are under the overall control of the Removal Opponent by way of a master licence agreement with Lush Ltd such that any use made of the Trade Mark by these companies is for the ultimate benefit of the Removal Opponent as they operate with a unity of purpose.

1. In Trident Seafoods Corporation v Trident Foods Pty Ltd, the Full Court found that control could be established in circumstances where the two companies shared the same directors:

It must be inferred from the evidence that the two companies operated with a unity of purpose. … As directors of Trident Foods, the directors had obligations to ensure the maintenance of the value in the marks. To that end Trident Foods necessarily controlled Manassen’s use of the marks by reason of the simple fact that it owned the marks and its directors, who were also Manassen’s directors, must have had one common purpose, being to maximise sales and to enhance the value of the brand. …it is commercially unrealistic in the circumstances of the present case not to infer that the owner of the marks controlled the use of the marks because the common directors necessarily wished to ensure the maintenance and enhancement of the value of the brand.8

⁷ See Ceramiche Caesar S.p.A v Caesarstone Ltd [2020] FCAFC 124; Trident Seafoods Corporation v Trident Foods Pty Ltd [2019] FCAFC 100; and Lodestar Anstalt v Campari America LLC [2016] FCAFC 92.

⁸ Ibid [45].

1. The Dear 2 declaration provides extracts from the United Kingdom Companies Register for the Removal Opponent and Lush Ltd. Extracts from the Australian Securities & Investment Commission database have also been provided showing company summaries for Lush Australasia Retail Pty Ltd and Lush Australasia Manufacturing Pty Ltd. However, these documents do not demonstrate that the Removal Opponent, Lush Ltd, Lush Australasia Retail Pty Ltd and Lush Australasia Pty Ltd shared common directors during the relevant period. All these documents show is that the companies are registered. Moreover, the Removal Opponent has not provided any evidence of the licence agreements. On this basis I am not satisfied that the material supports the Removal Opponent’s implication that these companies operated with a unity of purpose such that for practical purposes, the Removal Opponent controlled the use of the Trade Mark by Lush Ltd, Lush Australasia Retail Pty Ltd or Lush Australasia Manufacturing Pty Ltd within the meaning of s 8 of the Act.

1. The Removal Opponent provided further evidence in the Dear 1 declaration which it argues shows quality control. This evidence includes examples of labels applied to products sold in Australia which state that the products are invented in the United Kingdom and marketing material which sets out quality assurance measures and mentions a manufacturing plant in Australia. However, these marketing statements do not make any mention of the Removal Opponent by name and without more, are insufficient to demonstrate the necessary degree and type of control was actively exercised by the Removal Opponent during the Relevant Period. For these reasons, I find that Lush Ltd, Lush Australasia Retail Pty Ltd and Lush Australasia Manufacturing Pty Ltd are not authorised users of the Trade Mark for the purposes of the Act. Therefore, I am not satisfied that the Removal Opponent or an authorised user as contemplated by the Act has used the Trade Mark during the Relevant Period in relation to the Removal Goods.

1. Furthermore, the Removal Opponent does not claim nor does the evidence raise matters which would be regarded as obstacles to use of the Trade Mark in the Relevant Period, pursuant to s 100(3)(c) of the Act.

1. The ground for removal under s 92(4)(b) of the Act has been established in relation to the Removal Goods.

1. Before proceeding I consider it important to make a finding in relation to whether the goods exhibited to show use of the Trade Mark are classified or described as ‘pharmaceutical preparations and substances; medicated products and preparations for the care of skin, hair, teeth and nails’ because it is relevant to the exercise of the Registrar’s discretion.

1. There is no evidence before me claiming the goods are pharmaceutical. The issue is whether the goods are ‘medicinal products and preparations for the care of skin, hair, teeth and nails’. Medicated goods are listed on the Australian Register of Therapeutic Goods (‘ARTG’), rather than registered, and listed goods are ones that contain low risk ingredients and make indications for therapeutic use that are for health maintenance/enhancement or non-serious conditions. The Therapeutic Goods Administration’s (‘TGA’) guidance about whether a product is a cosmetic or a medicine relates largely to the claims that are made about the product:

   One of the main factors in determining whether a product is a cosmetic or a medicine (or a medical device) is the claims made about the product. For example, moisturisers that contain a sunscreening agent as a secondary component above SPF15 are therapeutic goods and regulated medicines. Most soaps will be cosmetics unless they make a therapeutic claim, in which case they may be therapeutic goods.9

1. The Porter declaration provides further information from the Australian Industrial Chemicals Introduction Scheme (‘AICHIS’) on whether goods are cosmetics or therapeutics, and again the guidance focusses on the intended use, where treating a disease or modifying the way in which the body works corresponds to therapeutic goods rather than cosmetics. Under the heading ‘What is a cosmetic’ AICHIS states:

A cosmetic product is a substance designed to be used on any external part of the body – or inside the mouth – to change its odour or appearance, cleanse it, keep it in good condition or protect it.

1. I also turn to the Macquarie Dictionary which defines cosmetic as: ‘a preparation for beautifying the complexion, skin, etc; serving to beautify; imparting or improving beauty, especially of the complexion; designed to effect a superficial alteration while keep the basis unchanged’.10

⁹ Therapeutic Goods Administration (online, 18 August 2021) < therapeutic-good#2>.

¹⁰ The Macquarie Dictionary, (online, 18 August 2021) < type="1">

In this matter the Removal Opponent argues that its goods incorporate ingredients which are used to alleviate common ailments. For example, the products ENZYMION and COSTMETIC LAD contain aloe vera. While products containing ingredients such as aloe vera are listed in the ARTG, the guidance from TGA and AICHIS leads me to conclude that these products can be characterised as either therapeutics or cosmetics. Therefore, the way in which products are marketed is more relevant to whether they should be considered medicated products or not.

1. The products as shown in the Dear 1 declaration show the goods being marketed as having naturally calming, cooling, soothing and hydrating properties. However, none of this marketing terminology directly states that the products have a therapeutic use. It merely contends that the products are designed to keep the skin in good condition or protect it, and therefore it would be considered as cosmetic.

1. In this regard the Cincotto declaration provides expert evidence from Ms Cincotta a registered pharmacist and a member of the academic staff of the School of Medical Sciences (Pharmacology), Faculty of Medicine and Health at the University of Sydney. Ms Cincotta reviewed how the Removal Opponent promotes its body lotion products CHARITY POT, DREAM CREAM and PANSY and sells them online to Australian consumers. Ms Cincotta found none of the promotional materials regarding the products refers to any physiological conditions, whether in broad or specific terms, that any active ingredients are intended to treat; or provides directions for application or use for the treatment of any physiological condition; or provides cautions regarding improper or inappropriate use.

1. Finally, the Dear 1 declaration points to independent consumer reviews of the Removal Opponent’s products including DREAM CREAM where users stated that this product was effective when used to treat eczema and plaque psoriasis, and ENZYMION where a user found it to be a ‘godsend’ for their sensitive and slightly oily skin. However, in the Blades declaration, Mr Blades, a therapeutic goods consultant, submits that he found the user reviews to be entirely anecdotal, with no indications as to how the product was used, and what controls, if any, were applied in order to determine if the apparent benefit was superficial or systemic in its nature.

1. In response the Removal Opponent argues that there is no requirement under the Act for class 5 goods to be listed with ARTG or refer to physiological conditions, or directions for their treatment or cautions regarding improper or inappropriate use.

1. In this regard I note that goods in class 5 are classified according to the Nice Classification, which is an international classification system of goods and services applied to the registration of trade marks. The 11^th edition of the Nice Classification has been in effect since 1 January 2017 and the relevant class heading for class 5 is ‘Pharmaceuticals, medical and veterinary preparations’ and the explanatory note provides ‘class 5 includes mainly pharmaceuticals and other preparations for medical or veterinary purposes’ and in particular ‘medicated shampoos, soaps, lotions and dentifrices’. The Nice Classification in operation as at the priority date of the Trade Mark was the 6^th edition, 1992. The applicable class heading for class 5 included ‘Pharmaceutical, veterinary and sanitary preparations’ and the explanatory note provides ‘this class includes mainly pharmaceuticals and other preparations for medical purposes’. The explanatory notes refer to medicated products for medical purposes or preparations for medical purposes. Having reviewed the product information provided by the Removal Opponent, I am of the opinion that none of these products appear to be marketed as been for medical purposes and therefore could not be classified as having these properties. Therefore, I find that the goods provided by the Removal Opponent to show use of the Trade Mark in the Relevant Period would be classified as cosmetics and therefore class 3 goods.

1. Regardless of whether use of the Trade Mark by Lush Ltd, Lush Australasia Retail Pty Ltd and Lush Australasia Manufacturing Pty Ltd was authorised by the Removal Opponent I am not satisfied that the Trade Mark was used for class 5 goods in the Relevant Period.

Registrar’s Discretion

1. Section 101(3) of the Act provides:

101 Determination of opposed application—general

[…]

(3)If satisfied that it is reasonable to do so, the Registrar or the court may decide that the trade mark should not be removed from the Register even if the grounds on which the application was made have been established.

[…]

1. The Removal Opponent bears the onus of satisfying the Register that the discretion under s 101(3) ought to be exercised in its favour.11

2. The question to be asked is whether it is reasonable not to remove the Trade Mark in respect of the Removal Goods, even though the Removal Opponent did not establish that it had used the Trade Mark in relation to the Removal Goods.12

3. In referring to the discretion the Removal Opponent relies on the relevant considerations identified in E & J Gallo Winery v Lion Nathan Australia Pty Ltd13 where Flick J stated that the following factors set out by Falconer J in Hermes Trade Mark14 were of assistance in considering the exercise of the discretion:

   ·there had been no abandonment of the trade mark;

   ·the registered proprietors of the trade mark still had a residual reputation in the mark;

   ·there had been sales by the registered proprietors of goods for which removal was sought since the relevant period ended;

   ·the applicants for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the mark; and

   ·the registered proprietors were not aware of the applicant’s sale under the mark.

1. The Removal Opponent further submitted that the public interest and the interests of the parties are inherent in the above factors. In this regard Austin, Nichols & Co Inc v Lodestar Anstalt provided the following guidance:

The Purpose of Part 9 is to provide for the removal of unused trade marks from the Register. In that regard it is plainly designed to protect the integrity of the Register, and in this way, the interests of the consumer. At the same time, however, it seeks to accommodate, where reasonable, the interests of the registered trade mark owners.15

1. While the Removal Opponent has not addressed these factors in full, it argues that it has an established reputation in the Trade Mark in Australia in respect of the goods in class 3 and there is a likelihood of confusion or deception amongst consumers if other traders were to register the word LUSH for similar goods in class 5. The Removal Applicant disputes the

¹¹ Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [273].

¹² Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [28].

¹³ [2008] FCA 934, [209].

¹⁴ [1982] RPC 425.
¹⁵ [2012] FCAFC 8, [38].

Removal Opponent’s reputation in the Trade Mark in Australia and argues that the Removal Opponent has not provided any evidence as to any likelihood of public confusion.

1. The Trade Mark has been registered since 1996 and there is scant substantive evidence before me that demonstrates that the Removal Opponent has a reputation in the Trade Mark in relation to class 3 goods in Australia. The bulk of the evidence can be attributed to Lush Ltd, Lush Retail Ltd, Lush Australasia Retail Pty Ltd or Lush Australasia Manufacturing Pty Ltd and the Removal Opponent has not established that these companies are authorised users of the Trade Mark in Australia or internationally.

1. Section 101(4) of the Act provides that one of the factors which may be considered under s 101(3) is whether the Removal Opponent has made use of the Trade Mark on similar goods. In this regard the Removal Opponent referred to the following passages in Societe Anonyme des Eaux Minerales d’Evian v The Yogurt Co Pty Ltd:16

It is not necessary for me to determine whether all of the goods and services in Classes 43, 3, 32, 18 and 25 in respect of which the opponent’s trade marks are registered are similar goods and services as the goods and services in respect of which the opponent has used its trade mark. I consider that it is sufficient to state that obviously many of them are. […]

On the basis of the opponent’s use of its EVIAN Word and EVIAN Stylised trade marks on similar goods and services to many of those for which it is registered, it is apparent that the Registrar’s discretion ought to be exercised in relation to a broad range of goods and services within those registrations.

1. However, simply because cosmetic goods in class 3 may be similar to pharmaceutical or medicated goods in class 5 is not sufficient reason on its own to warrant leaving the Trade Mark on the Register for all or part of the Removal Goods. I note that, if I were to grant the application for partial removal, the scope of protection that remains would be the class 3 goods and any similar or closely related services, which would be broad enough to prevent consumer confusion.

1. In this matter, the Removal Applicant states that it has a genuine commercial interest in obtaining registration of its trade mark in respect of: therapeutic goods in the nature of water- based personal sexual lubricants; water-based preparations for use in vaginal lubrication for sexual purposes; spermicides for application to barrier contraceptive devices; spermicides for

¹⁶ [2012] ATMO 53, [43], [44].

application to condoms; prophylactic preparations for application to barrier contraceptive devices; prophylactic preparations for application to condoms; contraceptive preparations.

1. Whilst acknowledging the broad discretion available under s 101(3) of the Act, having considered all the claims and material before me, and in the absence of any persuasive submissions and evidence from the Removal Opponent in this regard, I am satisfied that the public interest would be served if all the Removal Goods were removed from the Register.

Decision

1. I direct that trade mark registration 724252 be removed from the Register in respect of all goods in class 5, one month from the date of this decision. In the event of an appeal, I direct that the Trade Mark will not be removed for all goods in class 5 until the appeal has been discontinued or, in the event of a decision from the Court, that the Trade Mark be subject to that order.

Costs

1. Both parties sort costs. It is usual for costs to follow the event, and I see no reason to depart from that principle here. I award costs against the Removal Opponent as allowed by Schedule 8 of the Trade Marks Regulations 1995 (Cth).

Louise Tuohy Hearing Officer

Oppositions and Hearings Trade Marks and Designs 26 August 2021