Opposition by Epistar Corporation to registration of trade mark application 1789506 - EPISTAR (classes 9 and 11) - in the name of RGBLink Pty Ltd; and Opposition to removal of trade mark registrations 1577855...

[2019] ATMO 81

TRADE MARKS ACT 1995

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

Re: Opposition by Epistar Corporation to registration of trade mark application 1789506 – EPISTAR (classes 9 and 11) – in the name of RGBLink Pty Ltd; and Opposition to removal of trade mark registrations 1577855 (classes 9 and 11) and 1628489 (classes 9, 11 and 37) - EPISTAR with devices - in the name of RGBLink Pty Ltd.

DELEGATE:

Nicole Worth

REPRESENTATION:

Epistar Corporation: John O’Mahoney, Collison & Co

RGBLink Pty Ltd: written submissions prepared by Ross Johnston

DECISION:

2019 ATMO 81

Opposition to registration under s 52 of the Trade Marks Act 1995 (Cth) – application made in bad faith – registration refused.

And

Applications for removal of trade marks under s 92 of the Trade Marks Act 1995 (Cth) – oppositions thereto under s 96 of the Act – meaning of ‘good faith’ in context of Part 9 of the Act – use not sufficiently documented in relation to 1628489 – Registrar’s discretion not exercised

– trade mark to be removed – use shown in relation to 1577855 - trade mark to remain on the register – cancellation may have been more

  appropriate action by removal applicant.  

Background

1. This decision concerns one trade mark application and two trade mark registrations, all in the name of an Australian entity, RGBLink Pty Ltd (‘RGB’). The trade mark application is the subject of an opposition to registration mounted by a Taiwanese entity, Epistar Corporation (‘EC’), and the two registrations are the subject of removal applications made by EC.

1. Summarised details of the trade mark registrations and the trade mark application are below. Their full specifications of goods and services are given at Annexure A of this decision.

Registration 1577855	Registration 1628489	Application 1789506
(‘the Circle Logo’)	(‘the Star Logo’)	EPISTAR (‘the Word Mark’)
Filing date: 7 September 2013	Filing date: 13 June 2014	Filing date: 19 August 2016
Classes: 9, 11	Classes: 9, 11, 37	Classes: 9, 11

1. Much of the evidence relied upon by the parties is the same in each of the actions (although not entirely the same). To that end EC requested that they be heard together and RGB made no objection to this. The matters were allocated to me, a delegate of the Registrar of Trade Marks, and scheduled for hearing in Canberra on 26 February 2019. EC was represented at the hearing by John O’Mahoney of Collison & Co. RGB elected not to appear at the hearing but filed written submissions for my consideration.

1. For convenience I begin with the discussion of the opposition by EC to registration of the Word Mark in the name of RGB, followed by the discussion of the applications for removal by EC.

Opposition to Registration by EC

1. On 19 August 2016 Teresa Crossett filed an application to register the Word Mark, EPISTAR, in respect of the goods listed below.

   Class 9: Light emitting diode (LED) displays; Light emitting diodes (LED); Light emitting diodes (LED) for use in display boards; Light emitting diodes (LED) with plugs; Advertising display signs (electric or luminous); Advertising signboards (electric); Advertising signboards (luminous); Digital audio signal processors; Digital signal processing apparatus; Digital signs; Electric signs; Illuminated advertising signs; Light signboards; Luminous signs; Portable signs (luminous) for roads; Safety signs (luminous); Security apparatus for processing video and/or audio signals; Security apparatus for transmitting video signals; Sign boards (luminous); Traffic information panels (luminous signs); Traffic signs (luminous); Video signalling apparatus; Video display apparatus; Video display screens; Video screens; Televisions incorporating clocks with light emitting diode digital displays; Video display instruments; Video display units

   Class 11: LED lamps; LED lighting apparatus; Light-emitting diode (LED) lighting apparatus; Lighting apparatus utilising light emitting diodes (LEDs)

1. Following advertisement in the Australian Official Journal of Trade Marks on 12 January 2017 of the application’s acceptance for possible registration, EC filed a Notice of Intention to Oppose registration of the Word Mark on 10 March 2017, followed by a Statement of Grounds and Particulars (‘SGP’) on 7 April 2017. The application was subsequently assigned to RGB by a Letter of Assignment, which was recorded on the register on 19 May 2017.

1. Thereafter the parties filed evidence to support their cases (discussed in more detail below), after which the hearing described above took place.

Grounds, Onus and Relevant Date

1. The SGP nominated grounds of opposition under ss 58, 60, 42(b), 62 and 62A of the Trade Marks Act 1995 (‘the Act’). As the opponent, EC bears the onus of establishing at least one of the grounds of opposition and the relevant standard of proof is the ordinary civil standard of the balance of probabilities.1

2. The relevant date at which the rights of the parties are determined is generally the filing date of the application,2 which here is 19 August 2016.

10.As will become clear I have determined that the ground under s 62A of the Act is established and so I have not discussed the remaining grounds of opposition. Nonetheless they, and any other ground under the Act, are available to EC in the event of an appeal.

Evidence

11.The following evidence was filed by the parties in respect of the opposition to registration of the Word Mark:

Evidence in support

Declaration by Meng-Chun Kuo, Director of the Intellectual Property Division of EC, with exhibits MK-1 to MK-16, dated 11 September 2017.

Evidence in answer

Declaration by Ross Johnston, Managing Director of RGB, with exhibits MK-A to MK-C, dated 9 December 2017.

Evidence in reply

Declaration of Meng-Chun Kuo with exhibits MK-17 to MK-19, dated 28 February 2018.

EC’s Evidence

12.Ms Kuo makes the following statements in respect of EC:

My company which is identified globally through the trademark EPISTAR is the largest chip manufacturer of light emitting diodes in Taiwan.

My company specializes in high brightness LED products which are used in general lighting, traffic signals and various consumer products, including mobile phones, LED displays and laptop computers.

My company is the world’s largest chip manufacturer of red and yellow LED’s and holds over 3,000 patents worldwide in connect with LED technology and products.

…

1 Pfizer Products Inc v Karam [2006] FCA 166, [6]-[26]; confirmed by the Full Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133].

2 Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82.

The word EPISTAR is in no way descriptive or generic in connection with LED products or LED technology, and no trader would be required to use this made up term EPISTAR to describe any electrical or electronic products or systems, including LED products and those products that include LEDs.

13.Ms Kuo also provides statements of annual turnover, in the order of several hundred million $USD, and claims that her company invented the term EPISTAR in 1996 in part because EPITAXIAL is her company’s core technology and her company endeavours to be a STAR in the LED industry by offering the brightest LED’s.

14.Extracts from an informational publication of EC are exhibited which show, amongst other things, that EC is a manufacturer of LED wafers and chips. These wafers and chips are substrate material that is subsequently packaged into LED modules or systems, for use in various applications such as traffic signals, mobiles phones, computers and LED screens, street lights and cars. The website also provides details of EC’s offices and production sites in China and Taiwan.

15.Extracts from the United States Patent & Trade Mark Office show that as early as 1999 EC filed trade mark applications in that jurisdiction for the word EPISTAR, at times accompanied by a logo (as shown in the first two representations below), in respect of semiconductor wafers, semiconductor chips and computer chips (or services in relation to their development and manufacture). Applications from 2010 show use of the font shown in the third representation below. Other extracts dated between 2010 and 2013 from various jurisdictions’ intellectual property offices are also exhibited.

16.Ms Kuo exhibits various Australian sources (such as web pages from traders of LED products, blog discussions and promotional publications) dated between 2007 and 2013. They identify EC as the manufacturer of the LED chip or wafer that is used in the various

products discussed. ‘More recent’ publications made by Australian suppliers of LED products are exhibited which identify EC as the chip manufacturer.3

17.On 1 March 2017 EC, via its attorneys Collison & Co, wrote to Teresa Crossett (the then- registered owner of the subject trade mark application and registrations) and Robert Crossett. The letter states:

The reason for this letter is that our client [EC] has recently provided us with information and documentation that you are operating a commercial enterprise using their trade mark EPISTAR in relation to the sale of LED products suggesting an affiliation with our client’s EPISTAR brand which is a complete fabrication as no such relationship exists between yourselves and our client Epistar Corporation.

We attach herewith extracts taken from your own website, dated 6 January 2017 and more recently 23 February 2017, showing your use of the terminology EPISTAR here in Australia and the perpetrated falsehoods to members of the public that your use of the EPISTAR brand is affiliated with our client.

18.

Signed extracts dated 6 January and 23 February 2017 from the website ‘ are exhibited. They relate to a business which appears to trade in large LED screens and signage, trading under the logo shown below.

Upon the ‘Contact Us’ page of the website appears a listing for EPISTAR AUSTRALIA at a Queensland address and listings for EPISTAR TAIWAN and EPISTAR CHINA at addresses in those locations (which correspond with the cities/districts listed in EC’s informational publication). The website also contains a page titled ‘EPISTAR – Taiwan Latest Reports’ below which are what appears to be links to several publications made by EC in relation to various developments in EC’s products and business.

19.The letter requested various undertakings including no further use of EPISTAR without EC’s authorisation, withdrawal from public access of the website at ‘ and withdrawal and cancellation of the subject application and registrations.

20.

The response from Mr Johnston, Managing Director of RGB, is exhibited. Mr Johnston explains that his company entered into a contract in June 2016 to purchase the trade marks at issue, which were ‘licensed for use’ from Teresa Crosset. The contract was

3 They are undated; I have presumed that ‘more recent’ refers to the period after the filing date.

fulfilled on 3 March 2017. He acknowledges EC’s concerns regarding the alleged intended affiliation, but denies any bad faith. He states:

We acknowledge that the only form of link that our Australian registered trademarks have, being “Epistar” and “Epistar Australia”, with “Epistar Taiwan”; is that the LED Screen products that we manufacture incorporate the “Epistar Taiwan” LED substrate material known as an “Epi Wafer” or “LED Chip”.

21.Mr Johnston expresses his opinion that:

As your clients industry relates to developing and producing LED substrate material known as the “Epi Wafer” or “LED Chip”; and who are not in the industry of  developing, manufacturing or producing the complete LED (Light Emitting Diode) component that encapsulates the LED substrate material which than produces light; than your clients company and our company operate in opposite markets [sic].

He also asserts that EC has no Australian customer base or brand recognition in Australia. He nonetheless indicates that his company is in the process of amending its website to alleviate EC’s concerns. In respect of listing EC’s addresses on the ‘Contact Us’ page of ‘ Mr Johnston states:

Under the Australian Trademark Act 1995, section 122; “Epistar Australia” lists your client’s business details for the sole purpose of providing its customers with relevant information regarding the quality and origin of the “Epistar Taiwan” Epi wafer & LED chip material used in our products.

22.Ms Kuo notes that Mr Johnston does not explain in his response why he chose the trade mark EPISTAR nor addresses the alleged similarities in the parties’ logos.

23.Ms Kuo also exhibits extracts taken from Wikipedia in connection with the term EPISTAR dated 16 March 2017 (the relevant content of which is self-evident from the below statements). Of them she states:

My company was responsible for originally listing the information on Wikipedia about the term EPISTAR, all ‘except’ for the last two lines of the entry.

Without my company’s authorisation, in 2016 the Wikipedia entry for EPISTAR originally made by my company was edited to state “In September 2013 Epistar Australia began manufacturing and supplying screens and signage for the local market”.

Also in 2016 the Wikipedia entry for EPISTAR originally made by my company was edited further with an external link reference to include ‘ Kuo asserts that it was RGB who edited the Wikipedia entry. EC has since updated the entry to remove the reference to ‘Epistar Australia’ and the link to ‘ Ms Kuo exhibits 2016 extracts of the website ‘ from the Internet Archive Wayback Machine, allegedly around the time EC first made contact with RGB. Those extracts do not make any statement about there being no affiliation between EPISTAR Australia and EC, nor do they reference the alleged ‘star’ series of RGB’s products (referred to in RGB’s evidence below).

RGB’s Evidence

26.Mr Johnston makes the following statements in respect of RGB:

Our company RGBLink Pty Ltd acquired the trade mark 1789506 application including other Intellectual Property relating to the business trade of EPISTAR and EPISTAR Australia.

Our company manufactures and sells LED Screens, LED Signs, LED Radar Signs, LED Scrolling Signs, LED Messaging Signs and LED Light Boxes, for the Australian market.

Our EPISTAR and EPISTAR Australia marks, brands and trademarks, have been in use within Australia since June 2012, used to brand our products in the LED Screen and Signage industry.

Our company does not export its products outside of Australia.

Our company does not sell any of its products to any businesses for export outside of Australia.

…

Our company has numerous product and component suppliers based in China, which supply our company with its products and components.

…

Our company does not directly purchase the “LED Chip/EPI Wafer” material from EPISTAR Taiwan, as this product would be useless to us, as we are not manufacturers of LED encapsulation.

Our Chinese manufacturers of our LED modules, purchase the DIP and SMD LEDs from a Chinese based LED encapsulation company, who then purchase the “LED Chip/EPI Wafer” material from EPISTAR Taiwan; for the manufacture of the LEDs required in our LED Screen and LED Signage products.

Our company has been using the domain name and since August 2013, to promote our products and services throughout Australia.

27.Mr Johnston’s declaration somewhat reiterates his response to the letter he received from EC’s attorneys, in that he asserts the parties operate in different markets and that EC allegedly has no Australian customer base or brand recognition. Much of his declaration is dedicated to disproving various statements made by Ms Kuo, and is not necessary to recount here. That which I will note are Mr Johnston’s allegations that:

·EC cannot claim to be the inventor of the term EPISTAR because there are pre- existing and concurrently existing trade mark applications and registrations for that word in various jurisdictions around the world;

·That EPISTAR Taiwan is listed on the website ‘ to refer to it being the manufacturer of the ‘LED Chip’ material used in some of RGB’s LED Screens; that EPISTAR China is listed on the same website to refer to RGB’s supplier located in China which is not associated or affiliated with EC; this information is listed with the purpose of being ‘educational and informative’ and is allegedly allowable under s 122 of the Act; and the website [presumably since this dispute commenced] states that there is no affiliation between EPISTAR Australia and EPISTAR Taiwan;

·The Wikipedia entry was not edited by himself or anyone within his company; and that upon searching Wikipedia he was unable to validate that such an edit was made;

·That similarity of an Australian company name or trade mark registration to a foreign company name or registration does not make the Australian registration illegal or prove an intended affiliation; and EPISTAR Taiwan has not attempted to register its company name or trade marks within Australia prior to ‘our company’ (presumably being RGB and its predecessor Teresa Crossett) establishing its brand ‘over five years ago’;

·EC’s claim to have a reputation is unfounded because to have a ‘legally protected reputation’ in Australia EC must be able to prove that the reputation is generated by either the establishment of a company within Australia that is owned or controlled by EC; or have established agents/distributors under a license agreement over which EC has control. (Mr Johnston refers to a newsletter from the law firm Phillips Ormonde Fitzpatrick which discusses Lodestar Anstalt v Campari America LLC [2016] FCAFC 92, a decision relating to, inter alia, ‘authorised use’ within the meaning of the Act);

·The name EPISTAR was chosen as a trade mark because ‘EPI’ stands for ‘Energised Pixel Illumination’, and ‘STAR’:

stands for the category in which our product range is named, and as the ‘star’ in our logo has five points, this signifies the ‘five’ product series we have in our ‘star’ series; each series named as a ‘star’ – (Sun series, Sirius series, Pegasi series, Vega series and Bellatrix series).

·EC’s claim to detriment on account of consumers mistakenly assuming an affiliation is false because, inter alia, ‘Over the past five years of commercial trade under the EPISTAR Australia brand, our company was only asked twice if our company was affiliated with EPISTAR Taiwan, in which we expressed no affiliation apart from using the EPISTAR Taiwan ‘LED Chip’ material in the LED Pixels of our LED Screen and Signage products’.

28.Other than his declared statements, Mr Johnston does not provide any examples or evidence of RGB’s own use of the Word Mark.

Section 62A

29.Section 62A of the Act provides:

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

30.The words ‘bad faith’ are not defined in the Act. However, in Fry Consulting Pty Ltd v Sports Warehouse (No 2) Dodds-Streeton J made the following observations:

Bad faith, in the context of s 62A, does not, in my opinion, require, although it includes, dishonesty or fraud. It is a wider notion, potentially applicable to diverse species of conduct.

The formulation in the United Kingdom authority of bad faith as falling short of the standard of acceptable commercial behaviour observed by reasonable and experienced persons in a particular area is, in my view, an apt touchstone…

Further, in my view, mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice, as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand or unconscientious character…

The question is whether, in all the particular circumstances, the applicant’s knowledge was such that his decision to apply for registration at the relevant date would be regarded as in bad faith by persons adopting proper standards.4

31.In DC Comics v Cheqout Pty Ltd, Bennett J endorsed the approach taken by Dodds- Streeton J, stating:

Bad faith is a combined test that involves subjective and objective elements. The subjective element refers to the knowledge of the relevant person at the time of making the application. The objective element requires the decision-maker to decide whether, in the light of that knowledge, the relevant person’s behaviour fell short of acceptable commercial standards.

The question is whether the conduct falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in the particular area. It is whether the knowledge of the applicant was such that the decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.5

32.Here, there is little by which I might glean RGB’s subjective intentions (or Teresa Crossett’s for that matter) in applying for the Trade Mark. The only explanation as to RGB’s adoption of the word EPISTAR is Mr Johnston’s statement that EPI stands for ‘Energised Pixel Illumination’ and ‘STAR’ refers to both the star in RGB’s logos and RGB’s range of ‘star’ products (the existence of which no evidence is shown). I note also that this explanation is given well after the subject dispute was on foot and not mentioned at all in his initial response to EC’s attorneys in March 2017. Additionally, Mr Johnston is silent as to why RGB uses a logo showing marked similarities to that used by EC as early as 1999, as shown below. I consider that such a circumstance requires explanation, but none is given.

4 [2012] FCA 81 [164].

5 [2013] FCA 478 [62].

EC’s logo  RGB’s logo

33.RGB’s explanation as to adoption of the word EPISTAR might be accepted in isolation despite the lack of evidence of the existence of the ‘star’ series of products (although I do not say that I accept the explanation). But when the adoption of this word is viewed in light of the strikingly similar logo adopted by RGB, doubt is cast upon the explanation.

34.Furthermore, I am not persuaded by Mr Johnston’s explanation for listing EC upon the ‘Contact Us’ page of RGB’s website or why EC’s ‘Latest Reports’ are included within that site. Mr Johnston alleges that such use is merely for informational purposes and is allowable under s 122 of the Act.6 However, in the 2016 extracts of the website there is nothing to indicate to the observer that EC’s address and contact numbers are given merely for the purpose of indicating the source some of the materials for some of RGB’s products. EC’s address and contact numbers are given in exactly the same manner as those of RGB’s (and those of EPISTAR China, apparently an independent supplier to RGB not related to EC at all, which begs the question why the supplier’s actual name is not then given). Similarly, in relation to the inclusion of EC’s ‘Latest Reports’ there is nothing to indicate that the purpose of listing that information is to educate the observer as to developments in a company which provides some of the materials for some of RGB’s products. Nor does there appear to be any contact information relating to any of RGB’s other suppliers, which one might expect if RGB’s purpose was to educate its customers as to the source of its components. Rather, in my estimation the information is presented in such a way as to indicate an affiliation between the businesses EPISTAR Australia and EPISTAR Taiwan. I note Mr Johnston’s statements that the website ‘clearly states that there is no affiliation between EPISTAR Australia and EPISTAR Taiwan’, however he neither states when this disclaimer was added (it does not appear to be on the website as at the dates EC made copies of it) or provides extracts to show this is indeed the case.

6 Section 122 of the Act is titled ‘When is a trade mark not infringed?’ and provides at s 122(1) that a person does not infringe a trade mark when the person uses in good faith his/her name or place of business, or uses a sign in good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic of the goods or services.

35.Whilst I acknowledge that there is a degree of difference between the substrate material (being LED wafers/chips) and the finished products within which it is incorporated, I am not persuaded that it is to such an extent that the parties would be considered to operate in different markets. It does not appear that the wafers and chips produced by EC are used for anything other than incorporation into LED lighting products (as opposed to, for example, the vast array of goods that gold or raw steel might be incorporated into). The various Australian sources exhibited by Ms Kuo demonstrate that the identification of the supplier of the substrate material is a common practice and seemingly important to consumers of LED related products. For example ‘Lighting Pro Australia’ identifies EPISTAR as its LED source; ‘About Space Flat Flex LED Lighting’ identifies EPISTAR Taiwan as the chip supplier; a writer upon the ‘Alternative Energy Assn Forums’ states ‘Basically The Top LED manufacturers use Epistar Chip Technology’; and a writer upon ‘Planet LED Blog’ states in article about LED lights ‘Cree is an excellent range of LED Chips. So is Bredgelux, Epistar, Sharp and Osram’.

36.These Australian sources also tend against RGB’s allegation that EC has no brand recognition in Australia. Rather, the opposite appears to be the case. Additionally, Mr Johnston’s assertion that EC is required to prove an existing customer base or distributor relationship in Australia is misplaced: neither is required for the purposes of s 62A (nor, in fact, is an existing customer base or distributor relationship in Australia necessarily required to prove reputation at all. Reputation may be gained in the absence of direct trade by virtue of, for example, information shared online so long as it can be shown that Australians saw such information). Similarly, the fact that EC has not (previous to the subject dispute or prior to RGB’s claimed year of first use) attempted to register its trade marks in Australia is not necessarily detrimental to its case: EC has apparently acted promptly as soon as it discovered the business trading under the name EPISTAR Australia.

37.Additionally, by Mr Johnston’s own admission there have been two instances of consumers (presumably in Australia, given he is emphatic that RGB trades only in the Australian market) asking whether the parties are affiliated. This tends to support the notion that they would be considered as belonging to the same market and that EC has some brand recognition in Australia.

38.As to whether EC can claim to have invented the Word Mark, I acknowledge that the word EPISTAR is registered in a number of jurisdictions in relation to various goods or services. However, the question is not whether the word has previously been utterly unused but whether it has been used in relation to the goods in question. Here there is no evidence that anyone used EPISTAR in relation to the subject goods prior to EC, or that anyone has since used it in any way to merely indicate the ‘kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic’ of the goods (per s 122 of the Act, cited by Mr Johnston). Unlike words intended to be covered by s 122 of the Act, the word EPISTAR conveys no generic meaning to the general public.

39.Lastly, the matter of the Wikipedia page cannot be resolved on the evidence before me. The revision history of the page (which I have taken into consideration, as a matter of public record) does show that on 8 August 2016 the additions identified by Ms Kuo were made by the user ‘Wektis’. However there is nothing before me to indicate who ‘Wektis’ is, and given anyone may make such edits I cannot conclude that it was Mr Johnston or RGB (although such edits would undoubtedly have benefited them).

40.Bearing all of the above in mind, I consider that the subjective intentions of RGB and/or Teresa Crossett in applying for the Word Mark was to suggest (or, more accurately, to continue to suggest) that EPISTAR Australia was affiliated with EC, when in fact no such affiliation existed. I consider that reasonable and experienced persons in the LED industry would consider the conduct of RGB falls short of the standards of acceptable commercial behavior, and that the decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.

41.The ground under s 62A is accordingly established.

Decision and costs

42.Section 55 of the Act relevantly provides:

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

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

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

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

Note:  For limitations see section 6.

43.EC has established a ground of opposition. I therefore refuse to register trade mark application 1789506.

44.Both parties sought an award of costs. Costs generally follow the event and given there is no apparent reason to depart from this principle I award costs against RGB under s 221 of the Act in line with the amounts in Schedule 8 of the Trade Mark Regulations 1995.

Removal Applications by EC

45.On 7 April 2017 EC filed two applications under s 92(4)(a) of the Trade Marks Act 1995 (‘the Act’) to completely remove trade mark registrations 1577855 and 1628489 from the Register; that is, to remove them in respect of all of the goods and services for which they are registered. The details of these registrations are provided at Annexure A, and for convenience their summarised details are given again below.

Registration 1577855	Registration 1628489
(‘the Circle Logo’)	(‘the Star Logo’)
Filing date: 7 September 2013	Filing date: 13 June 2014
Classes 9 and 11.	Classes 9, 11 and 37.

46.RGB filed Notices of Intention to Oppose removal on 2 May 2017 and Statements of Grounds and Particulars on 22 June 2017, alleging use of the impugned trade marks since 2012.

47.The parties filed evidence in due course, discussed in more detail below, after which I heard the matter as described in paragraph 3.

The Legislative Framework

48.Section 92 of the Act relevantly provides:

92 Application for removal of trade mark from Register etc.

(1)Subject to subsection (3), a person may apply to the Registrar to have a trade mark that is or may be registered removed from the Register.

…

(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:

(a)that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

(i)    to use the trade mark in Australia; or

(ii)    to authorise the use of the trade mark in Australia; or

(iii)    to assign the trade mark to a body corporate for use by the body corporate in Australia;

in relation to the goods and/or services to which the non-use application relates and that the registered owner:

(iv)    has not used the trade mark in Australia; or

(v)    has not used the trade mark in good faith in Australia;

in relation to those goods and/or services at any time before the period of one month ending on the day on which the non-use application is filed;

49.Section 100 of the Act relevantly provides:

100 Burden on opponent to establish use of trade mark etc.

(1)In any proceedings relating to an opposed application, it is for the opponent to rebut:

(a)any allegation made under paragraph 92(4)(a) that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

(i)    to use the trade mark in Australia; or

(ii)    to authorise the use of the trade mark in Australia; or

(iii)    to assign the trade mark to a body corporate for use by the body corporate in Australia;

in relation to the goods and/or services to which the opposed application relates (relevant goods and/or services); or

(b)any allegation made under paragraph 92(4)(a) that the trade mark has not, at any time before the period of one month ending on the day on which the opposed application was filed, been used, or been used in good faith, by its registered owner in relation to the relevant goods and/or services;

50.Accordingly, the onus is upon RGB to establish that at the time of filing the applications for registration of the Circle Logo and the Star Logo (being 7 September 2013 and 13 June 2014 respectively), it or its predecessor in title had an intention to use those trade marks in good faith in relation to the goods and services listed in the application; or that it has used the trade marks in good faith in relation to those goods and services before 7 March 20177 (‘the relevant period’, being one month before EC filed the applications to remove the registrations).

51.

Section 101(1) provides that the Registrar may remove a trade mark for any or all of the goods and services to which the application for removal relates, if satisfied that the grounds for removal are established. Alternatively, s 101(3) bestows upon the Registrar

7 The word ‘and’ used between ss 92(4)(a) (iii) and (iv) is capable of being read conjunctively or disjunctively, however the disjunctive operation of the word is affirmed by the use of the word ‘or’ in ss 100(1) (a) and (b). To that end an opponent to removal need only prove intention or use, not necessarily both. See Bodiguard Pty Ltd v Draeger Safety Uk Ltd [2018] ATMO 27, [18]-[21].

the discretion not to remove a trade mark, even where the grounds for removal are established, if satisfied that it is reasonable to do so. The onus is upon RGB to positively satisfy the Registrar that the discretion should be exercised.8

Meaning of ‘Good Faith’ in the Context of Part 9 of the Act

52.The Registrar’s delegate, in Pierson’s Pro-Health Pty Ltd v Allan Sutton9 gave the following analysis of the expression ‘in good faith’ used in s 92(4)(a) of the Act:

[19] Under section 92, Drummond J in Woolly Bull Enterprises Pty Ltd v Reynolds10 found “the expression "use in good faith" has a well understood meaning in this context, viz, real, as opposed to token, use in a commercial sense.” In Edwards v Liquid Engineering 2003 Pty Ltd11 Gordon J stated (with emphasis added):

Having considered the evidence led, and submissions made, I was poised to answer that question in the affirmative and uphold the appeal, on the basis that "good faith" for the purposes of s 92(4) requires no more than genuine intent to use a mark for commercial purposes; it does not involve any element of honesty or subjective good intentions: see generally E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 at [187] - [192] (examining the meaning of "good faith" under related provisions of the TMA). However, during the course of the hearings it became apparent that what LE 2003 really wanted, and should have applied for in the first place, was the expungement of the registrations by Edwards under s 88 of the TMA on the basis that Edwards was not the owner of the unregistered marks: ss 52 and 58 of the TMA. I therefore delayed giving judgment in VID 934 of 2006 so that a separate application could be brought on that basis and the matters resolved together.

[20]   The Full Federal Court in Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2003 Pty Ltd12 upheld the above reasoning and said (emphasis added in bold):

Gummow J considered the meaning of the expression "use in good faith" as a criterion for infringement in Johnson & Johnson Australia Pty Ltd v Stirling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 354, pointing out that:

There is, in relation to the comparable provisions in the British Act of 1938, authority to the effect that in order to qualify as such use there must be a real or genuine use in a commercial sense, rather than colourable activity and "token" use designed to lead trade rivals to think that the registered proprietor was using its mark in a way which gave it the protection of the legislation.

See also E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934; [2008] 77 IPR 69 at [99] - [707] and the authorities there referred to.

We were directed to several other authorities which took a broader view of the expression but insofar as they conflict with the above authorities we do not consider they were correct.

8 Austin, Nichols & Co v Lodestar Anstalt (No 2) (‘Austin’) [2012] FCAFC 8, [44].

9 [2012] ATMO 52, [19]-[23].

10 Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [16].
11 Edwards v Liquid Engineering 2003 Pty Ltd [2008] FCA 970, [8].

12 Liquideng Farm Supplies Pty Ltd v Liquid Engineering 2003 Pty Ltd [2009] FCAFC 7, [54].

In the present case having regard to the above authorities, we do not consider that her Honour erred when she observed at [8] of her reasons that s 92(4) of the Act requires no more than a genuine intent to use the mark for commercial purposes, and that the reference to bona fide intention to use is not sufficiently wide to encompass the circumstances of the present case.

[21]    The High Court of Australia affirmed the interpretation of ‘in good faith’ in the decision of E & J Gallo Winery v Lion Nathan Australia Pty Ltd13 stating:

In "Concord" Trade Mark ("Concord"), Falconer J relied on Lawton LJ's  summary of the findings in the Electrolux case in Imperial Group:

"According to the judgments given in this court in that case [Electrolux] a bona fide use should be 'ordinary and genuine' (per Lord Evershed MR at p 36), 'perfectly genuine', 'substantial in amount', 'a real commercial use on a substantial scale' (per Jenkins LJ at p 41) and not 'some fictitious or colourable use but a real or genuine use' (per Morris LJ at p 42)."

[22]   The above reference to the expression ‘fictitious or colourable use’ arises from the comments of Morris LJ in Electrolux Ltd v Electrix Ltd14 who used it in this context:

The Legislature, in my view, had in mind that someone could not gain immunity from attack by asserting use when there was really only some fictitious or colourable use and not a real or genuine use.

….

It is, of course, clear that when the phrase “bona fide” is used, its context must be considered when deciding what is its meaning.

[23]   Morris LJ stopped short of providing specific examples of ‘colourable use’, but the expression ‘fictitious or colourable’ has since been adopted in the British case of Imperial Group Ltd v Philip Morris & Co Ltd15 and (as seen above) in Gallo. In those instances it is employed in relation to use that cannot be described as real or genuine (or ‘bona fide’) including use manufactured solely to defeat an application for non-use. For the opponent’s use of the trade mark and its intention to be established as ‘colourable’ and not bona fide, it must have been for a purpose other than deriving profit and establishing goodwill16 in the course of trade.

53.Accordingly, what is required to be shown by RGB is that its intention or use was genuine, being for the purpose of deriving profit and establishing goodwill, and not for some other colourable purpose (such as defeating a non-use application). The elements of honesty and subjective good intentions do not inform whether the use, in terms of Part 9 of the Act, is in good faith. These matters are more appropriately dealt with by an application to the courts to have registration cancelled.

54.To that end the parties face something of a difficulty. Both have framed their evidence largely on proving or disproving (depending upon the party) ‘bad faith’ in the sense

13 E & J Gallo Winery v Lion Nathan Australia Pty Ltd (‘Gallo’) [2010] HCA 15; supra at [62].

14 Electrolux Ltd v Electrix Ltd (1954) 71 RPC 23 (at 42).
15 [1982] FSR 72.

16 Imperial Group Ltd v Philip Morris & Co Ltd (supra) at 82-83 per Shaw LJ.

provided for in grounds of opposition to registration or in grounds for cancellation of registration. Nonetheless, that which is relevant is discussed below.

Evidence

55.The evidence filed in these matters comprises the following declarations:

1577855 Evidence in support

Declaration by Ross Johnston, Managing Director of RGB, with exhibits MK-A to MK-C, dated 29 November 2017.

1628489 Evidence in support

Declaration by Ross Johnston with exhibits MK-A to MK-C dated 9 28 November 2017.

1577855 Evidence in answer

Declaration of Meng-Chun Kuo, Director of the Intellectual Property Division of EC, with exhibits MK-1 to MK-5, dated 28 February 2018.

1628489 Evidence in answer

Declaration of Meng-Chun Kuo with exhibits MK-1 to MK-5, dated 28 February 2018.

1577855 Evidence in reply

Declaration by Ross Johnston with exhibits B4, B6 to B14, and B16 to 18, dated 4 May 2018.

1628489 Evidence in reply

Declaration by Ross Johnston with exhibits B1 to B13, B15 to B17, dated 4 May 2018.

56.As foreshadowed much of the evidence presented in these removal matters goes to proving or disproving ‘bad faith’ and so has already been discussed in respect of the opposition to registration. Both of Mr Johnston’s declarations filed as ‘Evidence in support’ here are, in all material aspects, the same as his declaration filed as ‘Evidence in answer’ in the opposition to registration. Statements are made regarding use of trade marks (and are recounted below) but no supporting documentation is provided. Similarly, both of Ms Kuo’s declarations present largely the same information as that filed in respect of the opposition to registration, and in fact attach her declarations filed as ‘Evidence in support’ and ‘Evidence in reply’ in the opposition to registration. However, perhaps unwittingly, Ms Kuo’s evidence aids RGB’s claim to use of, at least, the Circle Logo as it shows dated evidence of it being used upon the website ‘ align="left">57.It is not until the ‘Evidence in reply’ stage in these removal matters that any supporting documentation is provided by RGB itself which goes to the question of its use of its trade

marks. Although this evidence is not strictly ‘in reply’ to EC’s evidence, the Registrar is not bound by the rules of evidence. In any event, I consider that EC had a reasonable opportunity to consider and object to it if it so wished.

58.Additionally, much of the evidence filed in one removal action is the same as the other and for that reason I have discussed the facts and events presented as one. Where the evidence differs, I have identified it accordingly.

RGB’s Evidence

59.RGB acquired trade mark registrations 1577855 and 1628489 in June 2016. The company is declared to manufacture and sell LED Screens, LED Signs, LED Radar Signs, LED Scrolling Signs, LED Messaging Signs and LED Light Boxes for the Australian market.

60.The ‘EPISTAR and EPISTAR Australia marks, brands and trademarks’ (in Mr Johnston’s words) are declared to have been used in Australia since 2012 to brand ‘products in the LED Screen and Signage industry’. A somewhat convoluted history of ownership and licensing of the trade mark(s) is provided, but it is not necessary to detail it here.

61.RGB is declared to have established a large network of Australian resellers and distributors for the sale of ‘LED Screen products’ throughout Australia, and is declared to have more than 35 employees and numerous onsite product installation contractors.

62.In respect of the meaning of the word EPISTAR, Mr Johnston declares:

EPISTAR AUSTRALIA has been promoting its LED Screen products as EPISTAR and EPISTAR Australia since 2012, with the meaning of the word – EPI (Energized Pixel Illumination), and STAR (or product range consisting of five product series, each series being named after stars, Sun series, Sirius series, Pegasi series, Vega series, Bellatrix series); one star for each of the give points of the star pictured in our EPISTAR Logo Image. [It is not stated which logo this refers to].

Of the ‘STAR’ range of products Mr Johnston declares that ‘we intended to name our future range after STAR names’; and ‘at the time the trade mark was registered’ (presumably being at the times both the Circle Logo and the Star Logo were registered) the focus was upon manufacturing and retailing with very slow growth until 2016: it was not until May 2017 that the product range named after stars was developed.

63.RGB’s ‘companies, agents, distributors, resellers’ are declared to have been trading and ‘branding’ its product range since September 2012 via various websites including ‘ via direct targeting mail outs, at trade shows throughout Australia,

and via printed and electronic catalogues. Its customers are declared to include schools, churches, businesses, government departments, shopping centres, telecommunication providers, hospitality clubs and pubs.

64.Images are provided at the end of the declaration, most of which are undated. (That which is independently dated is an ‘Australian Made’ certificate dated 30 September 2017, although it shows neither of the logos but rather the Word Mark). The images appear to depict promotion of the Circle logo at a trade show, in various promotional pamphlets or catalogues and upon a van. Only one image depicts the Star Logo. It is undated and appears to depict a promotional pamphlet titled ‘Wholesale LED Signs’, giving specifications and pricing for such signs.

65.A customer list is also provided which includes dates of sales to various customers for various products, although does not contain any reference to any trade mark.

66.Lastly, a number of exhibits are attached to each declaration. They are not referred to in the body of the declaration, but rather are given as a list of ‘Uploaded Exhibit Files’ at the end of it. They differ somewhat between the declarations provided for each registration: it is not clear whether this is deliberate or due to improper uploading to IP Australia’s systems. In any event I have taken all of them into account for both registrations, noting that the outcome would be the same regardless. All of the exhibits are electronic copies of various documents used by RGB, such as a warranty document, various brochures and catalogues, template quotation forms, user guides, seller guides, and so on. None show the Star Logo, although they do show the Circle Logo, and none are dated, although certain documents are stated to be from 2015, 2016 and 2017 in the list of ‘Uploaded Exhibit Files’.

EC’s evidence

67.It is not necessary to discuss further the evidence filed by EC in respect of the removal applications. In all material aspects it is the same as the evidence filed in respect of the opposition to registration, the only difference being that it acknowledges there is no use shown of the Star Logo (as at the time ‘Evidence in answer’ in the removal actions was filed).

Consideration of the Star Logo

68.I begin with a consideration of the Star Logo. It is difficult to discern which, if any, of Mr Johnston’s declared statements relate to use of the Star Logo: he refers to the ‘EPISTAR and EPISTAR Australia marks, brands and trademarks’, which appears to conflate the Word Mark, possibly the words ‘EPISTAR Australia’, and possibly either or both of the Circle Logo and the Star Logo. In any event, the onus is upon RGB to prove use of the Star Logo and more is generally required than simply declared statements. The only supporting documentation showing use of the Star Logo is the image of what appears to be a promotional pamphlet titled ‘Wholesale LED Signs’ giving specifications and pricing for such signs. It is undated and there is no information as to whom it may have been distributed to or who may have seen it. Where a trade mark owner relies upon only one, or few, instances of alleged use, such instances ought to be established by ‘if not conclusive proof, at any rate, overwhelmingly convincing proof’.17 Here, I could not be convinced that the undated pamphlet about which no information is provided shows use of the Star Logo during the relevant period in relation to the registered goods.

69.Nor is there any clear statement regarding intention to use the Star Logo. As already mentioned it is not clear which trade mark(s) Mr Johnston refers to in his declaration, and there are no statements specifically referring to a different or updated logo from that originally adopted. His statements about the meaning of the ‘STAR’ part of the word EPISTAR (being that it relates to the five pointed star) could be in relation to either the Circle Logo or the Star Logo. In the absence of any clear statement regarding intention and in the absence of documented use during the relevant period, I do not infer that RGB (or Teresa Crossett) had the requisite intention to use the Star Logo in relation to the registered goods and services. The ground for removal under s 92(4)(a) is accordingly established.

70.The ground for removal having been established, it is open to the Registrar to exercise the discretion under s 101(3) and maintain the registration so long as she is satisfied it is reasonable to do so. As already mentioned the onus to positively satisfy the Registrar of that lies with RGB.18

17 Nodoz Trade Mark [1962] RPC 1, 7.

18 Austin, [44].

71.Factors that may be relevant to the exercise of the discretion were articulated in Gallo (referring to Hermes Trade Mark19), which although not exhaustive provide some guidance:

·There had been no abandonment of the trade mark;

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

·There had been sales by the registered proprietors of [the relevant goods] 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 sales under the [trade mark].20

72.RGB does not clearly make statements intended to go to the Registrar’s discretion or addressing factors such as those listed above, however in submissions Mr Johnston does state:

In the event that EPISTAR TAIWAN was successful in having our trademark removed, this does not negate the fact that our group of companies have been actively trading with our trademarks since 2012; and the trademark application in which EPISTAR TAIWAN has made for the registration of their trademark within Australia, we would strongly oppose such application, on the basis of first use, our trading history since 2012, and the mere fact that EPISTAR TAIWAN has not had any previous trading within Australia, and does not have any agents, customers, companies, partnerships or licensee within Australia.

In the event that EPISTAR TAIWAN was successful in having our trademark removed, we will lodge an objection against such a decision, and at the same time lodge a new application to register our trademarks, which we have been trading under since 2012.

The fact which cannot be denied or disputed, and evidence proves, is that our company/trust have been trading under our trademarks, within Australia, since 2012; and that EPISTAR TAIWAN have never traded within Australia, and on a continuous basis, using their trademarks prior to 2012.

73.I am not persuaded that a potential opposition and new application are sufficient grounds upon which the Registrar’s discretion might be exercised. The outcome of such hypothetical actions is unknown, and certainly insufficient to establish that maintaining the registration is reasonable. I therefore refuse to exercise the Registrar’s discretion under s 101(3).

19 [1982] RPC 425.

20 Gallo, [202].

74.I am accordingly not satisfied that it is reasonable to maintain registration of the Star Logo in respect of any of the registered goods and services.

Decision in respect of the Star Logo

75.Subsection 101(1) of the Act provides:

(1)Subject to subsection (3) and to section 102, if:

(a)the proceedings relating to an opposed application have not been discontinued or dismissed; and

(b)the Registrar is satisfied that the grounds on which the application was made have been established;

the Registrar may decide to remove the trade mark from the Register in respect of any or all of the goods and/or services to which the application relates.

76.RGB has not established its opposition to the application for removal. Accordingly I direct that trade mark registration 1628489 be removed from the Register in respect of all of the goods and services for which it is registered, one month from the date of this decision. If the Registrar is served with a notice of appeal before that time, I direct that the removal shall not occur until the appeal has been discontinued. Otherwise the disposition of the application should be in accordance with the Court’s order or direction.

Consideration of the Circle Logo

77.The evidence of use provided by RGB in most aspects falls short of establishing that the Circle Logo was used in the relevant period. However, EC has provided extracts of RGB’s website captured both by the Internet Archive Wayback Machine in 2016 and by its attorneys in January and February 2017. These extracts show use of the Circle Logo in respect of a range of different types of LED signs and associated application software in the relevant period. (This evidence of course being the catalyst for subject actions before me).

78.As already stated, EC has perhaps unwittingly aided RGB’s case by supplying such evidence on the premise of proving ‘bad faith’. However, as discussed at paragraphs 52 to 54, the notions of honesty or subjective good intentions do not inform use ‘in good faith’ for the purposes of Part 9 of the Act. All that is required is showing an intention to use, or use, for the purpose of deriving profit and establishing goodwill.

79.I am satisfied, on the basis of EC’s evidence, that RGB had the intention to use the Circle Logo on the day the application for its registration was filed, and that it has in fact used it since then. It is possible that what EC should have sought is cancellation of the

registration per s 88 of the Act, via a prescribed court. However, where use such as is shown before me is established, removal of the registration is not appropriate. The ground for removal is therefore not established in respect of the Circle Logo.

Decision in respect of the Circle Logo

80.The opposition to the application for removal is established. Accordingly I refuse to remove trade mark registration 1577855 from the Register.

Costs in relation to the applications for removal

81.Both parties sought their costs in respect of the applications for removal. Since each party has had a measure of success, I decline to award costs.

Nicole Worth Hearing Officer

Trade Marks Hearings 29 May 2019

Annexure A

Registration 1577855

Registration 1628489

(‘the Circle Logo’)

(‘the Star Logo’)

Filing date: 7 September 2013

Filing date: 13 June 2014

Class 9: Light emitting diode (LED) displays; Light emitting diodes (LED); Light emitting diodes (LED) for use in display boards; Light emitting diodes (LED) with plugs; Advertising display signs (electric or luminous); Advertising signboards (electric); Advertising signboards (luminous); Directional signage (luminous or mechanical); Display signs of metal (luminous or mechanical); Display signs of non-metallic materials (luminous or mechanical); Electric signs; Flashing lights (luminous signals); Flashlight signalling apparatus; Illuminated advertising signs; Illuminated signposts; Illuminated signs; Illuminated signs used for advertising; Light signalling apparatus for use by persons in emergencies; Light signboards; Luminous electric signs; Luminous signals; Luminous signals for giving information to pedestrians; Luminous signals with relays; Luminous signs; Luminous signs for roads; Metal signboards (electric); Metal signboards (luminous); Modular sign panels (luminous); Portable signs (luminous) for roads; Portable signs (mechanical) for roads; Road signs (luminous); Road signs (mechanical); Road signs, luminous or mechanical; Safety signals (luminous); Safety signals (mechanical); Safety signals in the form of flashing beacons; Safety signals in the form of flashing lights; Safety signs (luminous); Safety signs (mechanical); Sign boards (luminous); Sign boards (mechanical); Sign makers (cutting plotters); Signs being illuminated; Signs being luminous; Signs being reflective; Signs of metal (luminous or mechanical); Signs, luminous; Signs, luminous, inflatable; Traffic guidance apparatus (luminous sign); Traffic guidance installations (luminous signs); Traffic information panels (luminous signs); Traffic light apparatus (signalling devices); Traffic signs (luminous); Traffic signs (mechanical); Diodes; Laser diodes; Zener diodes; Computer controls for lighting apparatus; Computer controls for lighting instruments; Electronic control apparatus for lighting; Lighting control apparatus; Programmable controls for

lighting  installations;  Remote  control apparatus

Class 9: Advertising display signs (electric or luminous); Illuminated advertising signs; Illuminated signs; Illuminated signs used for advertising; Road signs (luminous); Safety signs (luminous); Traffic guidance installations (luminous signs); Traffic information panels (luminous signs); Traffic signs (luminous); Light emitting diode (LED) displays; Light emitting diodes (LED); Light emitting diodes (LED) for use in display boards; Light emitting diodes (LED) with plugs; Advertising display apparatus (electric or luminous); Apparatus for the graphic display of data; Computer display apparatus; Digital video adaptors for displaying text with video pictures; Electric advertising apparatus with alternative displays; Electric devices for displaying information; Electric or electronic display screens; Electrical displays; Electronic display apparatus; Electronic display boards; Electronic display panels; Electronic displays incorporating moving lights; Electronic  panels for displaying messages; Electronic scoring displays for sports and games; Electronic visual display apparatus for use with computers; Illuminated electronic moving information displays; Liquid crystal display (LCD) televisions; Liquid crystal display panels for use with overhead projectors; Liquid crystal display screens; Liquid crystal display units; Liquid crystal displays; Liquid crystal electronic display modules; Luminous advertising apparatus with alternative displays; Plasma display apparatus; Radar displays; Roadside display boards (luminous); Score display apparatus (electric); Score display apparatus (electronic); Screens for use with visual display units; Television display apparatus; Television display apparatus for household use; Television display apparatus for industrial use; Television display apparatus for use with computers; Video display apparatus; Video display screens; Visual display screens; Video wall installations; Apparatus for lighting control; Computer controllers for operating lighting apparatus; Computer controls for lighting

apparatus; Electric control apparatus for lights; Light signboards.

for lighting units; Traffic control apparatus (lighting); Traffic control installations (lighting); Traffic control instruments (lighting).

Class 11: LED lamps; LED lighting apparatus; Light-emitting diode (LED) lighting apparatus; Lighting apparatus utilising light emitting diodes (LEDs); Lamps for directional signals of automobiles; Turn sign-board lamps for transport apparatus; Apparatus for lighting; Apparatus for lighting buildings; Apparatus for lighting displays; Apparatus for lighting powered by electricity; Apparatus for lighting public events; Computer controlled lighting apparatus; Computer controlled lighting instruments; Decorative electric lighting apparatus; Decorative electric lighting installations; Decorative gas lighting apparatus; Decorative gas lighting installations; Decorative gas lighting sets; Decorative lighting for Christmas trees; Decorative lighting sets; Display lighting; Electric apparatus for lighting; Electric fibre lighting apparatus; Electric indoor lighting apparatus; Electric indoor lighting installations; Electric lighting apparatus; Electric lighting fittings; Electric lighting installations; Electric lighting installations for exterior use; Electric lighting installations for interior use; Electric tracks for lighting; Electrical apparatus for lighting; Electrical appliances for lighting; Electrical installations for lighting; Electrical lamps for indoor lighting; Electrical lamps for outdoor lighting; Electrical lighting apparatus for vehicles; Electrical lighting fixtures for use in hazardous locations; Emergency lighting; Emergency lighting apparatus; Emergency lighting installations; Indoor electrical lighting fixtures; Indoor fluorescent electrical lighting fittings; Installations for electric lighting; Installations for lighting; Installations for lighting Christmas trees; Installations for outdoor  lighting; Installations for street lighting; Lamps for lighting purposes; Lamps for security  lighting; Lamps for vehicle lighting; Lighting (other than for medical photographic use; Lighting apparatus and installations; Lighting apparatus for commercial use; Lighting apparatus for industrial use; Lighting apparatus for installation as an integral part of kitchen furniture; Lighting apparatus for motor vehicles; Lighting apparatus for the stage; Lighting apparatus for use with video apparatus; Lighting apparatus for vehicles; Lighting apparatus incorporating optical fibres; Lighting being for

use   with  security  systems;   Lighting elements;

Class 11: LED lamps; LED lighting apparatus; Light-emitting diode (LED) lighting apparatus; Lighting apparatus utilising light emitting diodes (LEDs); Apparatus for lighting displays; Display lighting; Electric lighting installations; Electric lighting installations for interior use; Installations for lighting for use in cinematography; Installations for lighting for use in television; Installations for outdoor lighting; Installations for street lighting; Lights for external installations; Apparatus for lighting; Electric light bulbs; Electric light fittings; Electric lighting apparatus; Electric lights; Lighting elements; Lighting panels; Lighting tubes; Lights.

Class 37: Erection of signs; Electrical apparatus installation; Electrical installation services; Installation lighting systems; Installation of cable television systems; Electrical apparatus repair; Maintenance and repair of electrical apparatus; Maintenance and repair of electronic apparatus; Maintenance and repair of electronic installations; Repair of electronic apparatus; Repair of sound and vision recording apparatus; Repair of sound and vision reproducing apparatus; Television equipment installation and repair,

Lighting fixtures for commercial use; Lighting fixtures for household use; Lighting fixtures for office use; Lighting for aquariums; Lighting for display purposes; Lighting installations; Lighting lamps; Lighting louvres; Lighting panels; Lighting tubes; Lighting units; Luminous tubes for lighting; Lustres (parts of lighting apparatus); Mirror balls being lighting fittings; Optical apparatus for lighting purposes; Outdoor electrical lighting fixtures; Outdoor lighting; Outdoor lighting fittings; Plastic louvres being diffusers for lighting apparatus; Power generating apparatus for street lighting; Reflectors adapted for lighting apparatus; Reflectors for use with lighting apparatus; Reflectors for wide area lighting fixtures; Security lighting; Security lighting apparatus incorporating a passive infra- red detector; Security lighting incorporating a heat activated sensor; Security lighting incorporating a movement activated sensor; Security lighting incorporating an infra-red activated sensor; Security lighting operated by photocells; Shades for lighting apparatus; Shades for lighting installations; Solar collectors (lighting); Torches for lighting; Traffic guidance apparatus (lighting); Vehicle lighting; Vehicle

lighting apparatus; Vehicle lighting installations.