Opposition by New England Solar Power Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Daniel Salera to remove trade mark number 1215830 (class 9) – SolarShed - in the name of New...
[2022] ATMO 44
•24 March 2022
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by New England Solar Power Pty Ltd to application under section 92 of the Trade Marks Act 1995 (Cth) by Daniel Salera to remove trade mark number 1215830 (class 9) – SolarShed - in the name of New England Solar Power Pty Ltd
| Delegate: | Tracey Berger |
| Representation: | Opponent: Gestalt Law Pty Ltd Applicant: mdp Patent and Trade Mark Attorneys |
| Decision: | 2022 ATMO 44 Trade Marks Act 1995 (Cth) – application under section 92 – no use, or obstacle to use, in the relevant period- Registrar’s discretion not exercised – trade mark registration removed |
Background
New England Solar Power Pty Ltd (‘Removal Opponent’) is the owner of the following trade mark registration:
Trade Mark Number: 1215830
Trade Mark: Solarshed (‘Trade Mark’)
Filing Date: 18 December 2007
Specification: Solar energy operating apparatus (‘Registered Goods’)
On 4 February 2020, Daniel Salera (‘Removal Applicant’) filed an application under section 92(4)(b) of the Trade Marks Act 1995 (Cth)[1] seeking removal of the Trade Mark from the Register for all of the Registered Goods.
[1] Each reference to a section in these reasons is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’).
A Notice of Intention to Oppose the application for removal was filed by the Removal Opponent on 18 February 2020. The Statement of Grounds and Particulars (‘SGP’) was then filed on 17 March 2020. The Removal Opponent filed a Notice of Intention to Defend on 25 June 2020.
The parties then filed evidence in accordance with the timetable set out in regulation 9.16 Trade Marks Regulations 1995 (Cth)[2], concluding with the Removal Opponent’s evidence in reply on 16 June 2021.
[2] Each reference to a regulation in these reasons is a reference to a regulation in the Trade Marks Regulations 1995 (Cth).
Both parties were given the opportunity to request an oral hearing or to be heard based solely on written submissions. Both parties elected to only file written submissions. The matter was allocated to me to determine in my capacity as a delegate of the Registrar of Trade Marks based on the material filed during the proceedings which I have described above.
Evidence
Removal Opponent – Evidence in Support
The Removal Opponent’s evidence in support of the opposition to the removal of the Trade Mark consists of:
declaration made by Robert Edwin Taber, director of the Removal Opponent, on 26 September 2020 with Exhibits RT-1 to RT-9 (‘First RT Declaration’); and
declaration made by Nicholas William Taber, director of Murray Riverina Solar Power Pty Ltd, on 26 September 2020 with Exhibit NT-1 (‘NT Declaration’).
Robert Taber attests to the Removal Opponent’s operations in designing and installing solar power systems for 23 years in New South Wales and Queensland including use of the Trade Mark for mobile solar power units for 13 years. Average annual sales figures are provided along with a sample tax invoice dated 28 November 2016. Robert Taber concedes that the Registered Goods sold under the Trade Mark are not the main business line of the Removal Opponent but they are promoted on third party websites and at trade expos in particular the AgQuip Expo. The First RT Declaration avers that the Removal Opponent has further developed the Registered Goods sold under the Trade Mark and there was a sale of the new version in September 2017. Sales of goods under the Trade Mark were adversely impacted by the drought in NSW from early 2017-2020. In an effort to increase sales of the Registered Goods under the Trade Mark, Robert Taber entered into an oral agreement in around November 2019 with Murray Riverina Solar Power Pty Ltd (‘MRSP’) for that company to promote and sell the Registered Goods under the Trade Mark. Both Robert Taber and Nicholas Taber declare that they have actively promoted the Registered Goods under the Trade Mark in the Relevant Period despite minimal sales and few enquiries from potential customers.
Nicholas Taber avers that he has been a director of MRSP since the company was established in November 2019 to design and install solar power systems. It was agreed between the Removal Opponent and MRSP that MRSP would take over the operations of the Removal Opponent in stages, completed in March 2020. In the meantime, MRSP was permitted by the Removal Opponent to promote and sell the Removal Opponent’s Registered Goods under the Trade Mark. This arrangement led to some enquiries but no sales.
Removal Applicant- Evidence in Answer (‘EIA’)
The Removal Applicant’s Evidence in Answer consists of a Declaration of Daniel Salera made 12 February 2021 (‘Salera Declaration’). This declaration essentially constitutes arguments that the Removal Opponent’s evidence in support does not constitute proof of use of the Trade Mark as a trade mark in the Relevant Period, that the alleged use of the Trade Mark by MRSP was not “authorised use” under the control of the owner of the Trade Mark, and that any use was not in relation to the Registered Goods.
Removal Opponent- Evidence in Reply (‘EIR’)
As evidence in reply, Robert Taber filed a further declaration dated 16 June 2021 (‘Second RT Declaration’) responding to many of the arguments made by the Removal Applicant in the EIA. In particular, Mr Taber outlines the steps the Removal Opponent took to exercise quality control over MRSP’s use of the Trade Mark.
Grounds, Onus and Relevant Period
The Removal Applicant filed for removal of the Trade Mark under s 92(4)(b) which relevantly 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:
(a) …
(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.
The Removal Applicant alleges that the Removal Opponent did not use the Trade Mark in the course of trade in Australia at any time within the three year period ending on 4 January 2020 (‘Relevant Period’).
I note that an application under s 92(4)(b) may not be made before a period of five years has passed from the filing of the application for the Trade Mark[3] and I confirm that this requirement is satisfied.
[3] Per s 93(2) of the Act prior to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 as applies in the present matter. The updated s 93(2) of the Act applies to Trade Marks filed from 29 February 2019 onwards.
The Removal Opponent bears the onus of rebutting the allegation of non-use[4] and may do so by establishing on the balance of probabilities[5] that the Trade Mark was:
used in good faith by or on behalf of the Removal Opponent in relation to the Registered Goods during the Relevant Period[6]; or
not used because of circumstances that were an obstacle to use of the Trade Mark during the Relevant Period.[7]
[4] s 100(1)(c) Act.
[5] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).
[6] s 100(3)(a) Act.
[7] s 100 (3)(c) Act.
In Woolly Bull Enterprises Pty Ltd v Reynolds,[8] 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.[9] Little weight is to be given to assertions of use which are not supported by documentary evidence.[10] In Nodoz Trade Mark (‘Nodoz’), 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.’[11]
[8] [2001] FCA 261, [16].
[9] Ibid [17].
[10] Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8 (Hearing Officer Forno).
[11] (1962) RPC 1, 7.
In accordance with s 101, if the requisite use is not established, I may decide to remove the Trade Mark from the Register in respect of any, or all, of the goods identified in the removal application, or if satisfied it is reasonable to do so, decide not to remove the Trade Mark from the Register.
Discussion and Reasons
Use of the Trade Mark during the Relevant Period
The first issue to be determined is whether there has been use of the Trade Mark by the registered owner or an authorised user, in good faith, in relation to the Registered Goods, during the Relevant Period.
Both parties made submissions on whether the Removal Opponent’s mobile solar power units are “solar energy operating apparatus”. These are mobile structures with solar panels affixed to the roof with a battery and other electrical components contained within. The combination acts as an off-grid power source which presumably can be used for running tools or other equipment. I am satisfied that these are the same as the Registered Goods.
The ‘use’ that must be demonstrated is ‘use as a trade mark’. This means use of the sign as a ‘badge of origin’ in the sense that it indicates a connection in the course of trade between the goods or services and the person who applies the trade mark to the goods or services.[12] Use of a sign that is purely descriptive is usually not use as a trade mark. As Hill J noted in Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH[13], Hill J said:
In most, if not all cases, the question whether there has been use as a trade mark will be determined by an objective examination of the use in the context in which it appears.
[12] Oakley Inc v Franchise China Pty Ltd [2003] FCA 105, [29] (Drummond J).
[13] [2001] FCA 1874, [30].
Robert Taber concedes that there has only been one sale of the Registered Goods under the Trade Mark during the Relevant Period[14]. In terms of dated documentary proof of sales to support this claim, the First RT Declaration annexes an invoice dated 22 September 2017 to RE & S Taber at an address in Armidale which refers to ”a battery shed”. Robert Taber explains that the product was described as a ‘battery shed’ due to an administrative error by a new staff member. This invoice is curious in that it has been issued to someone with the same initials and last name as Mr Robert Taber. It appears that the declarant, Mr Robert Taber, has bought the product for his own private property. Even if the product was wrongly described on the invoice, it is possible that a third party customer would understand from interactions with the seller that they were buying the Removal Opponent’s Solarshed product. Further, when they received the product it would be branded with the Trade Mark in the manner illustrated in Annexure A of the Second RT Declaration. However, in the present instance, the real question is whether a sale by the Removal Opponent to a director of that company can constitute a genuine commercial use of the Trade Mark in good faith. I am not satisfied that it does constitute ‘overwhelmingly convincing proof’ of a genuine commercial sale as stated in Nodoz.
[14] Para 13 Second RT Declaration.
It is not necessary to establish an actual sale of the Registered Goods under the Trade Mark. A trade mark may be used in relation to goods where it is included on an invoice or some other document associated with the sale or promotion of goods.[15] In both the EIS and EIR, the declarants aver that they have actively promoted the Registered Goods under the Trade Mark during the relevant period by:
[15] Section 9 of the Act. See also Thunderbird Products Corp v Thunderbird Marine Products P/L [1974] HCA 51 (Jacobs J).
Advertising on third party websites. Exhibit RT-2 of the First RT Declaration is a screenshot of lgenergy.com.au. This website promotes the Removal Opponent and states that “Our cost effective solar sheds and ground mount panel frames are built to last and have the added benefit of ease of re-location…”.
(ii)Use of “Solarshed” as a Google keyword.
The use of a label bearing the Trade Mark on the Registered Goods sold by the Opponent. An undated photo illustrating this promotion is Exhibit RT-3 to the First RT Declaration. The label can also be seen in a photo forming part of Exhibit RT-2.
(iv)Attendance at AgQuip expo and use of enquiry forms by potential customers at this event. These Enquiry Forms enable potential customers to tick a box/es to obtain further information on “Grid-connect Solar”, “Off-grid Solar”, “Solar Hybrid”, “Solar Shed”, “Solar pumping” and “Other”[16].
Quote from the Removal Opponent dated 3 May 2018 to an existing customer to upgrade their existing Solarshed product to the new version (Exhibit RT-8 First RT Declaration). The relevant part of this quote reads “Customer to provide shed for housing new inverters and batteries? (Or use back of existing solar sheds (facing South) and add awning)”.
[16] Exhibit RT-4 First RT Declaration.
I will separately discuss the labels stuck on the Removal Opponent’s solar power sheds but otherwise, for the reasons discussed below, I do not consider the above examples to be use of the Trade Mark so as to indicate a connection in the course of trade with the Removal Opponent for the Registered Goods.
Use as a Google keyword does not generally constitute trade mark use[17]. Nothing in the Removal Opponent’s evidence suggests that its use of “solarshed” as a Google keyword constitutes use as a trade mark.
[17] Veda Advantage Limited v Malouf Group Enterprises Pty Limited [2016] FCA 255 (Katzmann J).
The third party website, quotes and Removal Opponent’s enquiry form are all descriptive uses rather than use as a badge of origin. It is not the use of ‘solar’ and ‘shed’ as two words and without capitals which is critical to this finding but rather the context of the use. In its EIA, the Removal Applicant criticized the use of “solar shed” in the invoices provided by the Removal Opponent. Robert Taber sought to explain this use in the Second RT Declaration as being a necessary means of identifying the components of the Registered Goods which have different warranty periods. However, it would of course be possible for the invoices to both use Solarshed as a trade mark and list the components if for example the invoices read: “Solarshed off-grid mobile solar unit comprising (inverter), (battery), (solar panels) etc”. Although the Removal Opponent likely intended to use the Trade Mark, it seems that the term ‘solar shed’ has in fact been used to indicate the kind of article which was sold. As Lockhart J commented in Johnson & Johnson Australia Pty Limited v Sterling Pharmaceuticals Pty Limited:
To say that a mark is used as a trade mark because that was the purpose of the registered proprietor would be inconsistent with the well established doctrine that use of a trade mark is as a badge of origin of goods, indicating a connection in the course of trade between the goods and the person who applies it to the goods… The Court, in considering the question of use as a trade mark under s. 23(1)(b), must adopt an objective standard and ask itself, is the mark being used in fact as a trade mark?[18]
[18] 30 FCR 326, [47]
The Removal Opponent alleges that they have continuously promoted the Registered Goods at expos in particular, the AgQuip Expo every year of the last decade (except 2020 when the expo was cancelled due to the pandemic). The First RT Declaration exhibits photographs from AgQuip Expo in August 2016[19] as evidence of promotion of the Registered Goods bearing the Trade Mark being shown at these events. The Trade Mark cannot be seen in these photographs and the photos were taken outside the Relevant Period. Whilst the first RT Declaration declares that the Registered Goods were promoted at this event in other years, there is no supporting evidence and I do not think it can be inferred that the Trade Mark was used as a trade mark at AgQuip in 2017-2020 based on the photographs provided for 2016, which as I have noted already do not show the Trade Mark.
[19] Exhibit RT-5
Exhibit RT-3 illustrates a label bearing the mark SolarShed with a stylised “o” which Mr Robert Taber attests is “stuck on every solar power sheds sold” (hereinafter referred to as the ‘SolarShed Label’). In my opinion, the SolarShed Label is the only use of Solarshed as a trade mark. The Removal Applicant submitted that this rendition does not constitute use of the mark as registered. I disagree. The comparison is between:
Solarshed and
Registration of the Trade Mark in ordinary font entitles the Removal Opponent to use the mark in other standard fonts such as SOLARSHED or SolarShed. I consider that the use of a capital “S” in ‘shed’ and stylised letter “o” are not additions or alterations that substantially affect the identity of the Trade Mark as registered.[20] There is a “total impression of similarity”.[21] However, I must decide if this use occurred in the Relevant Period and if so, whether the use is for the Registered Goods. The photograph is undated. The Removal Applicant submits that the sign appears weathered and the location of the structure bearing the label is not disclosed. It is not clear whether the SolarShed Label is on display to the public in a manner that would connect the Trade Mark to the provision of the Removal Opponent’s Registered Goods. A closer look at the photograph in Exhibit RT-2 for the First RT Declaration suggests that such a label is stuck on the shed in that picture but it does not appear in the photographs shown in Exhibits RT-5 and RT-6 of the same declaration. Annexure A of the Second RT Declaration is a photograph clearly showing the label used on the Removal Opponent’s mobile solar power units but this is the item sold to Mr Robert Taber. Again it is not apparent how visible this structure and label are to the public so as to indicate a connection to the Removal Opponent. In the circumstances, there is not conclusive evidence of use of the SolarShed Label in the Relevant Period.
[20] See Morny Ltd’s Trade Mark (1951) RPC 55.
[21] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [256].
The NT Declaration exhibits a copy of a single quote dated 29 April 2020 in support of the claim that MRSP has advertised and promoted the Registered Goods under the Trade Mark since November 2019. This quote is outside the Relevant Period and the only possible reference to the Trade Mark is “2xSurge Protection Devices (Voltex 275V 15kA) at House and Solar Shed”. As explained above, I do not regard this reference to be use as a trade mark.
As a general principle, the fewer acts of trade mark use relied on the more solidly they need to be established.[22] For the reasons outlined above, I am satisfied that the Removal Opponent’s evidence does not establish that the Trade Mark was used in relation to the Registered Goods during the Relevant Period.
[22] Re Nodoz Trade Mark [1962] RPC 1, 7 (Wilberforce J).
Obstacles to Use
Section 100(3)(c) of the Act provides that a removal opponent may rebut an allegation of non-use under section 92(4)(b) by establishing that the trade mark was not used by its registered owner during the period because of circumstances that were an obstacle to the use of the trade mark during the period.
The Removal Opponent claims that their business was severely impacted by the drought which impacted rural areas of NSW and Queensland for the Relevant Period. Robert Taber attests that 90% of the Removal Opponent’s customers are farmers some of whom made enquiries about the Registered Goods provided under the Trade Mark during the Relevant Period but could not afford to purchase the products due to economic stress caused by the drought.[23]
[23] Para 13 First RT Declaration.
It was well publicised in mainstream media that the drought from January 2017 to December 2019 was the driest on record and that this was a time of severe economic hardship for farmers. It is highly probable that during the drought farmers significantly curbed their spending on equipment. Given the Removal Opponent’s business is based in regional NSW and that the majority of its customers are farmers, I expect that the Removal Opponent’s business suffered a downturn due to the drought.
However, it must be shown that the failure to use the mark was due to the circumstances and “there must be a causal link shown between the relevant circumstances and the mark's non-use”.[24] In this regard, I believe the question is whether but for the drought, would the Removal Opponent have used the Trade Mark as a badge of origin?
[24] James Crean & Son Ltd’s Trade Mark (1921) 38 RPC 155, 166 (Ch D) followed in Wooly Bull Enterprises Pty Ltd v Reynolds [2001] 107 FCR 166, 182.
The Removal Opponent has demonstrated a sale of its goods on 28 November 2016, some 5-6 weeks outside of the Relevant Period. Whilst the invoice for this sale suffers from the same deficiency as much of the other evidence in that “solar shed” is used descriptively, it may be that when the product was provided to the customer, a SolarShed Label appeared on the goods. Unfortunately, the evidence is silent as to when the goods were delivered to the customer and whether a SolarShed Label was affixed.
Late in the Relevant Period, the Removal Opponent entered into the arrangement with MRSP to promote its Registered Goods under the Trade Mark. Some 5 months later and shortly after the drought broke, this arrangement appears to have generated some interest from a potential customer which led to a quote in April 2020. The Removal Applicant argued that use of the mark by MRSP did not constitute authorised use of the Trade Mark. I accept the Removal Opponent’s evidence as to the steps taken to ensure it exercised quality control over the use of the Trade Mark[25] and find that MRSP’s use of the Trade Mark was “authorised use”. Essentially, during this transition period MSRP could promote and sell these goods using the Trade Mark, but the Removal Opponent was the person who actually manufactured the goods and applied the Trade Mark to them. However, no detail is provided in the evidence about the steps that MRSP took to promote the Registered Goods under the Trade Mark.
[25] Para 7 Second RT Declaration.
As already noted above, nearly all of the Removal Opponent’s purported examples of use of the Trade Mark are flawed in sense that they present as descriptions of the goods. That is, they do not show use ‘as a trade mark’. The exception to this was the SolarShed Labels, which the Removal Opponent alleges are fixed to the Registered Goods when sold. The Removal Opponent’s name appears on these labels indicating a connection between the Trade Mark and the Removal Opponent. It seems that the Removal Opponent does affix the SolarShed Labels to the Registered Goods when they are sold as evidenced by the photograph in Exhibit RT-2 of the First RT Declaration and Annexure A of the Second RT Declaration. Although these Exhibits were not sufficient to demonstrate conclusive use during the Relevant Period, I am satisfied that they support the Removal Opponent’s contention as to the general use of the SolarShed Labels.
Therefore, had the Removal Opponent made one sale to a third party customer during the Relevant Period, the Trade Mark would have been used as a trade mark for the Registered Goods by virtue of the SolarShed Label being affixed to the Registered Goods. However, this is not the only means of proving use of the Trade Mark during the Relevant Period and had the Removal Opponent been able to provide an example of some form of advertising during the period, this would probably also have demonstrated use as a Trade Mark in the Relevant Period. As the Removal Applicant points out, the Removal Opponent did not even promote its Registered Goods under the Trade Mark on its own website, a step that could presumably have been easily taken to try to generate sales during tough times. I am satisfied that the drought impeded the Removal Opponent’s ability to secure sales of the Registered Goods in relation to the Trade Mark but the drought does not explain the absence of documented proof of advertising or promotion of the Registered Goods during the Relevant Period.
Although I find that the drought likely impacted sales of the Registered Goods during the Relevant Period, it did not prevent use of the Trade Mark in other ways. Hence, I find that the other circumstances (ie. the drought) did not prevent use of the Trade Mark and now consider whether it is appropriate to exercise discretion to allow the Trade Mark to remain registered.
Discretion
Section 101(3) 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.
[...]
The question to be asked is whether it is reasonable not to remove the Trade Mark in respect of the Goods, even though the Removal Opponent did not establish that it had used the Trade Mark in relation to the Goods during the Relevant Period.[26]
[26] Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [28] (Jacobson, Yates and Katzmann JJ).
The Removal Opponent bears the onus of satisfying the Registrar that the discretion under s 101(3) ought to be exercised in its favour.[27]
[27] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [273] (Yates J).
The discretion provided by this section is very broad. The Full Court of the Federal Court in Austin, Nichols & Co Inc v Lodestar Anstalt12 described it like this:
“As the primary judge pointed out, the discretion under s.101(3) is a broad one. Whilst it might also be true to describe it as “unlimited”,…in the sense that there are no express limits on it, more correctly it is a discretion limited only by the subject-matter, scope and purpose of the legislation and, in particular, by the subject matter, scope and purpose of Part 9 of the Act.”
In Societe Anonyme des Eaux Minerales d’Evian v The Yogurt Co Pty Ltd,[28] the delegate found that in exercise of the Registrar’s discretion, there are three factors which fall under the following broad headings to be considered:
the interest of the owner of the trade mark;
the interests of the applicant for removal; and
the public interest.
[28] [2012] ATMO 53, [33] (Delegate Thompson).
The Removal Opponent argues in favour of the exercise of the discretion on the basis that:
the Removal Opponent has continuously used and promoted the Trade Mark in relation to the Registered Goods and expects sales to increase due to its relationship with MRSP and the drought ending;
the Removal Applicant has not filed any evidence of his own interest in or use of the same or similar Trade Mark;
it is in the public interest for the mark to remain on the Register given the Removal Opponent’s continued use and promotion of the Registered Goods under the Trade Mark and its reputation amongst its customer base such as the quote requested from a customer to upgrade to the newer version of the Registered Goods.[29]
[29] First RT Declaration, para 15.
The Removal Applicant argues that it is not appropriate to exercise the discretion given the lack of sales of the Registered Goods under the Trade Mark when there has been a boom in solar installations over the last 5 years, the public interest in the integrity of the Register and the Removal Applicant’s interest in the mark Solar Shed. The Removal Applicant refers in its written hearing submissions to a pending application which is not in evidence. A search of the Register indicates that Mr Salera owned application No. 2065235 SOLARSHED & Device which application lapsed in September 2021 making it unclear whether the Removal Applicant has an ongoing interest in the mark.
In the absence of any proof of the level of sales of the Registered Goods under the Trade Mark before or after the Relevant Period, or proof of the advertising and promotion undertaken either by the Removal Opponent or MRSP, I am not satisfied that it is reasonable to exercise discretion to allow the Trade Mark to remain registered.
Decision and Costs
The Removal Opponent has not established its opposition to the removal of the Trade Mark. Accordingly, I direct that trade mark registration No. 1215830 be removed from the Register one month from the date of this decision.
Should the Registrar be served with a notice of appeal before the removal of the Trade Mark, I direct that the removal of the Trade Mark not occur until the appeal has been decided or discontinued, and that any disposition of the removal application be in accordance with the Court’s orders or direction.
Both parties asked that costs be awarded. Costs usually follow the event, and I see no reason to depart from that here. I award costs against the Removal Opponent.
Tracey Berger
Hearing Officer
Oppositions and Hearings
Trade Marks and Designs
24 March 2022
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