Opposition by Rajesh Yadali to application under section 92 of the Trade Marks Act 1995 (Cth) by Prana Living LLC to remove trade mark number 1595588 (class 35) - PRANA NATURA - in the name of Rajesh Yadali

[2022] ATMO 24

TRADE MARKS ACT 1995

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

Re:Opposition by Rajesh Yadali to application under section 92 of the Trade Marks Act 1995 (Cth) by Prana Living LLC to remove trade mark number 1595588 (class 35) - PRANA NATURA - in the name of Rajesh Yadali

Delegate:	Timothy Brown
Representation:	Opponent: Self-represented Applicant: Gilbert Tsang of counsel instructed by Backer McKenzie
Decision:	2022 ATMO 24 Trade Marks Act 1995 (Cth) – application under section 92(4)(b) – opposition to removal under section 96 – no use, or obstacle to use, of the trade mark during the relevant period – Registrar’s discretion not exercised – trade mark registration removed

Background

1. Rajesh Yadali (‘Removal Opponent’) is the owner of the following trade mark registration:

   Trade Mark Number:         1595588

   Trade Mark:   PRANA NATURA (‘Trade Mark’)

   Filing Date:   16 December 2013

   Specification:  Class 35: Retail services; Retailing of goods (by any means); Distribution of goods (not being transport services) (agent, wholesale, representative services, by any means) (‘Trade Mark’s Services’)

2. On 24 October 2019 Prana Living LLC (‘Removal Applicant’) filed an application under section 92(4)(b) of the Trade Marks Act 1995 (Cth) (‘Act’) seeking removal of the Trade Mark from the Register for all of the Trade Mark’s Services.

3. A Notice of Intention to Oppose the application for removal was filed by the Removal Opponent on 24 December 2019, followed by a Statement of Grounds and Particulars on 24 January 2020.

4. The Removal Applicant filed a Notice of Intention to Defend the application for removal on 2 April 2020.

5. Evidence in Support was filed by the Removal Opponent initially on 7 July 2020 and then on 8 October 2020. The Removal Applicant filed Evidence in Answer on 2 December 2020. Evidence in Reply was filed by the Removal Opponent 2 February 2021.

6. Following the evidence stages of proceedings, the parties were offered the opportunity to be heard. On 1 March 2021 the Removal Applicant requested a hearing. The Removal Applicant filed written submissions. A written summary of submissions was not filed by the Removal Opponent. The matter was heard before me, via video conference. Representing the Removal Applicant was Gilbert Tsang of counsel accompanied by Judith King of Baker McKenzie. The Removal Opponent was self-represented.

   Grounds, Onus and Relevant Date

7. The Removal Applicant filed for removal under section 92(4)(b) of the Act, which relevantly provides:

   92 Application for removal of trade mark from Register etc.

   (4)  An application under subsection (1) or (3) (nonuse 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 nonuse 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.

8. 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 the 24 September 2019 (‘Relevant Period’).

9. The Removal Opponent bears the onus of rebutting the allegation made under section 92(4)(b) of the Act.[1] The Removal Opponent may rebut the allegation by establishing that:

   ·The Trade Mark was used in good faith by its registered owner in relation to the Trade Mark’s Services during the Relevant Period;[2] or

   ·The Trade Mark was not used because of circumstances that were an obstacle to use of the Trade Mark during the Relevant Period.[3]

   [1] Trade Marks Act 1995 (Cth) section 100(1)(c).

   [2] Ibid s100(3)(a).

   [3] Ibid s100(3)(c).

10. The standard of proof required of the Removal Opponent is on the balance of probabilities.[4]

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

11. I note that I have discretion to allow the Trade Mark to remain registered even if there has been no use of the Trade Mark during the Relevant Period.[5]

    Evidence

    [5] Ibid s101(3).

    Removal Opponent

12. The Removal Opponent’s evidence consists of the following declarations:

    Evidence in Support

    ·Declaration made by Rajesh Yadali dated 7 July 2020;

    ·Declaration made by Rajesh Yadali dated 8 October 2020 (‘Yadali Declaration’) and Exhibits 1 to 5(d).

    Evidence in Reply

    ·Declaration made by Rajesh Yadali dated 2 February 2021 and Exhibit A.

13. I note that the Yadali Declaration contains all the information and exhibits initially provided in the declaration made by Rajesh Yadali on 7 July 2020.

14. In 2014 the Removal Opponent registered ‘Prana Natura’ as a business name.

15. Mr Yadali explains that his business, Prana Natura, has been certified by Australia Certified Organics Pty Ltd (‘Australian Certified Organic’) since 2014. Exhibits 2(a) to 2(f) contain certification certificates issued by Australia Certified Organic to the business Prana Natura. Exhibits 3(a) to 3(g) contain invoices for industry development levies issued by Australian Certified Organic to Prana Natura.

16. Mr Yadali states that goods bearing the Trade Mark have been advertised online for sale since May 2017 and that he sold goods, both retail and wholesale, within Australia under the Trade Mark between 6 May 2016 and 24 January 2019. Exhibits 5(a) to 5(d) contain invoices and bank statements provided to show the sale of goods by the Removal Opponent. Exhibits 4(a) and 4(b) provide screenshots of the Removal Opponent’s Facebook page from various dates within the Relevant Period.

17. In addition to the Trade Mark, the Removal Opponent is also the owner of the following trade mark:

    Trade Mark Number: 1610260

    Trade Mark:             PRANA NATURA

    Filing Date:               7 March 2014

    Specification:            See Annexure A

    Removal Applicant

18. The Removal Applicant’s evidence consists of a declaration made by Judith King on 1 December 2020 (‘King Declaration’) with Exhibits JK-1 to JK-4.

19. The King Declaration explains that the Removal Applicant is the owner of two pending trade mark applications:

Trade Mark No.	Trade Mark	Filing Date	Specification
1905611 (IR 1388194)	PRANA	30 June 2017	Class 35: Retail store and online retail store services featuring apparel and accessories for hiking, biking, climbing and yoga
2061374	PRANA CLOTHING	7 January 2020	Class 35: Computerized on-line retail store services in the field of apparel, accessories, footwear, bags, packs

(‘Removal Applicant’s Trade Mark Applications’)

1. The King Declaration provides screenshots from the Removal Opponent’s Website from twelve dates during the non-use period accessed via Wayback Machine.[6] Ms King declares that the screenshots show all the content available on the Removal Opponent’s Website.

   [6] A digital internet archive service that facilitates viewing of captured versions of web pages.

2. On 15 July 2020, Ms King accessed the Removal Opponent’s Facebook page and attempted to purchase a tote bag. The attempt was repeated on 23 November 2020. Screenshots obtained on 23 November 2020 record this attempt.

   Discussion and Reasons

   Use of the Trade Mark during the Relevant Period

3. The ‘use’ required to be demonstrated by the Removal Opponent is ‘use as a trade mark’. This is 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.[7] Use of a trade mark in relation to services includes use of the trade mark in physical or other relation to services.[8]

   [7] Coca-Cola Co v All-Fect Distributors Ltd [1999] FCA 1721, [19] (Black CJ, Sundberg and Finkelstein JJ).

   [8] Trade Marks Act 1995 (Cth) s7(5).

4. The Removal Opponent submits that the following activities demonstrate use of the Trade Mark in Australia during the Relevant Period:

   ·Registration of the business name ‘Prana Natura’ in 2014.

   ·Invoices and bank statements for sale of goods using the Trade Mark during the Relevant Period.

   ·Certification certificates issued by Australian Certified Organic.

   ·Screenshots of online advertisements showing use of the Trade Mark on the Removal Opponent’s Facebook Page.

   ·Use of the Trade Mark on the Removal Opponent’s Website.

5. I do not accept that registration of a business name constitutes use of a trade mark. The registration of a business name serves an administrative function. There is distinction between conducting commercial affairs under the name of a business and using a sign to distinguish goods or services from those of other traders.[9]

   [9] Shahin Enterprises Pty Ltd v Exxonmobile Oil Corporation [2005] FCA 1278, [73] (Lander J).

6. Mr Yadali exhibits an invoice issued by the business Prana Natura, and a small collection of bank statements from dates during the Relevant Period. The invoice and bank statements relate to transactions involving food or rice products. The words PRANA NATURA appear in the bank statements as the name of a bank account. The invoice also features PRANA NATURA as the name of a bank account, and includes the domain name, <  Displayed in the top right of the invoice is the following trade mark:

   (‘Composite Trade Mark’)

7. While the shared presence of the words ‘Prana Natura’ indicates a connection between the Composite Trade Mark and both the account name and domain name, I am not satisfied that the use of the words PRANA NATURA in either the invoice or bank statements functions to distinguish the Removal Opponent’s services from those of other traders. The account name indicates the name of the business’s bank account, while the domain name serves only to display the name of a webpage. From the perspective of a consumer, it is the Composite Trade Mark, prominently displayed in the top right of the invoice, that acts as a badge of origin.

8. With respect to the Composite Trade Mark, the Removal Applicant submits that use of the Composite Trade Mark does not constitute use of the Trade Mark because it does not satisfy the test for substantially identity. The two trade marks are reproduced side-by below:

Trade Mark	Composite Trade Mark
PRANA NATURA

1. The test for substantial identity referred to by the Removal Applicant is the seminal test expressed by Windeyer J in Shell Company of Australia Ltd v Esso Standard Oil (Australia Limited) (‘Shell & Esso’):

   In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[10]

   [10] [1963] HCA 66, [12].

2. The Removal Opponent contests the relevance of Windeyer J’s statement on the basis that the matter in Shell & Esso pertained to trade mark infringement rather than an application for the non-use of a registered trade mark. I do not accept this submission. Despite the different contexts, the Federal Court has confirmed that in circumstances that require an assessment of whether a trade mark has been used with additions or alterations that do not substantially affect the identity of the trade mark, it is appropriate to apply the established test for determining whether two trade marks are ‘substantially identical’.[11]

   [11] Optical 88 Limited v Optical 88 Pty Limited (No 2) [200] FCA 1380, [256] (Yates J).

3. Section 7(1) of the Act provides:

   If the Registrar or a prescribed court, having regard to the circumstances of a particular case, thinks fit, the Registrar or the court may decide that a person has used a trade mark if it is established that the person has used the trade mark with additions or alterations that do not substantially affect the identity of the trade mark’.

4. The Removal Opponent submits that the additional elements in the Composite Trade Mark do not substantially affect the identity of the Trade Mark. One of the issues considered by the High Court in E&J Gallo Winery v Lion Nathan Australia Pty Ltd (‘E&J Gallo’) was whether the word, BAREFOOT, used in conjunction with a device, was substantially identical to the registered trade mark, BAREFOOT. The High Court explained:

   The addition of the device to the registered trade mark is not a feature which separately distinguishes the goods or substantially affects the identity of the registered trade mark because consumers are likely to identify the products sold under the registered trade mark with the device by reference to the word BAREFOOT. The device is an illustration of the word. The monopoly given by a registration of the word BAREFOOT alone is wide enough to include the word together with a device which does not substantially affect the identity of the trade mark in the word alone. So much is recognised by the terms of s 7(1), which speak of additions or alterations which "do not substantially affect the identity of the trade mark". Except for a situation of honest concurrent use, another trader is likely to be precluded from registering the device alone while the registered trade mark remains on the Register. The device is an addition to the registered trade mark that does not substantially affect its identity. Accordingly, the use of the registered trade mark with the device constitutes use of the registered trade mark in accordance with s 7(1).[12]

   [12] E&J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15, [69] (French CJ, Gummow, Crennan and Bell JJ).

5. In the present case, the Trade Mark is comprised solely of the words PRANA NATURA. In comparison, the Composite Trade Mark contains a stylised ‘P’ with a leaf device, a flower device arranged around the letter ‘a’, and the words ‘vitality in abundance’. In Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd the Full Court clarified that the test for substantial identity is to be carried out cognisant of the essential elements of the trade marks.[13] With this in mind, a total impression of similarity does not emerge from a side-by-side comparison between the two trade marks. In contrast to the circumstances in E&J Gallo, the flower device is not illustrative of the words in the trade mark. Furthermore, the flower device occupies a particularly prominent place in representation of the Composite Trade Mark. In my view, both the flower device and the phrase ‘vitality in abundance’ are essential elements of the Composite Trade Mark. The addition of these elements to the Composite Trade Mark creates a clear difference in overall impression between the trade marks. Accordingly, I do not consider use of the Composite Trade Mark to be use of the Trade Mark. I infer from the invoice and bank statements that there have been transactions involving food products by the Removal Opponent. Beyond that, I am not satisfied that either the invoices or the bank statements establish use of the Trade Mark.

   [13] Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd [2017] FCAFC 83, [52] (Greenwood, Jagot and Beach JJ).

6. Next, the Removal Opponent relies on ‘certificate[s] of compliance’ issued by Australian Certified Organic to the business Prana Natura during the Relevant Period. These certificates identity the Removal Opponent’s rice products as being 100% organic in accordance with Australian Certified Organic’s certification standards. The scope of the certification is specified for ‘handler, exporter/importer and wholesaler’.

7. The Removal Opponent explains that the certification of the Removal Opponent’s products as ‘organic’ is an important and valuable part of trade in the food industry. The Removal Applicant does not dispute the value of the certification process, but submits that these documents only demonstrate that the Removal Opponent has engaged in certification services offered by Australian Certified Organic. I agree with the Removal Applicant’s submission. The certification certificates indicate that the organisation Australian Certified Organic provided certification services to the Removal Opponent in respect to rice products. The reference to ‘Prana Natura’ on the certificates is a reference to the name of the Removal Opponent's business. The certificates do not show the Trade Mark being used as a trade mark in the course of trade in relation to the Trade Mark’s Services.

8. Turning to the Removal Opponent’s online advertising activities, the Removal Opponent contends that the Trade Mark has been used in online advertising since May 2017. The Removal Opponent relies on screenshots from his Facebook page that refer to the Removal Opponent’s business as an ‘Organic health food and super food brand’. Goods referred to as ‘Prana Riceberry’ and ‘Prana Rice’ are priced and listed under a section of the page entitled ‘shop’. The same goods are presented in promotional posts on the Facebook page, for example, ‘We present our revolutionary products Prana Rice and Prana Riceburry’. Several posts also appear to indicate that the Removal Opponent’s products are available at other third party stores. For example, the King Declaration provides screenshots of posts on 11 June 2017 that state ‘Our products are available also at Awesomehealthfoods.com.au’, and ‘You can order out products from Ezy Health Food’.

9. The Removal Opponent submits that Facebook is a modern way of selling goods online, and that the ‘shop’ feature is equivalent to an ecommerce platform. The Removal Applicant concedes that the section entitled ‘Shop’ might suggest that the Facebook Page has been used to sell rice products and a cotton tote bag, but submits that the evidence does not suggest that the Facebook page has the capacity to conduct transactions. The Yadali Declaration states only that ‘goods have been advertised online for sale in Australia’. Ms King declares that when she attempted to purchase goods from the Facebook page, she was directed back to the landing page instead of being allowed to complete the transaction.

10. No evidence has been provided by the Removal Opponent that explains how the Removal Opponent’s business operates via the social media platform, or that connects any of the transactions evidenced in the Yadali Declaration to business conducted via the Removal Opponent’s Facebook page. More generally, the evidence does not substantiate the capacity of the social media platform to conduct commercial transactions in the manner submitted by the Removal Opponent.

11. I note that Ms King’s first attempt to purchase the Removal Opponent’s product took place on 15 July 2020, well past the Relevant Period. It is not necessary for the Removal Opponent to demonstrate actual sale of goods.[14] The phrase ‘in the course of trade’ encompasses a wide range of commercial activities. For example, use of a trade mark in relation to the advertisement of goods has been held to be use in the course of trade.[15]

    [14] Oakley, Inc v Franchise China Pty Ltd CAN 080 032 604 [2003] FCA 105, [29] (Drummond J).

    [15] Shell & Esso (n 10), [4] (Kitto J); Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) (1984) 156 CLR 414, 433-434 (Deane J).

12. I am unconvinced that the Removal Opponent provides, via Facebook, any service to consumers in Australia. It is apparent that the Removal Opponent’s products, including two rice products bearing the Composite Trade Mark, were offered for sale via Facebook. However, this evidence falls short of demonstrating that the Trade Mark was used in relation to the Trade Mark’s Services. The Trade Mark’s Services are, in substance, retail, wholesale and distribution services. The Facebook page appears to be the trade channel by which the Removal Opponent provides its own goods for sale. It does not demonstrate that the Removal Opponent engages in, or otherwise offers retail or wholesale services. There is also no evidence that the Removal Opponent offers services for the delivery of goods. The delivery of any of the Removal Opponent’s own goods that might be ordered through Facebook would be an activity internal to the Removal Opponent’s own business operations.

1. My reservations regarding the alleged use of the Trade Mark on the Removal Opponent’s Facebook page are compounded by lack of any evidence of trade conducted through the Removal Opponent’s Website. The contact details on the Facebook page link to the Removal Opponent’s Website. The Removal Opponent’s Website features the Trade mark and its composite variation. However, the website is absent of any content that would indicate use of either trade mark in the course of trade. There are no advertisements, promotions or offers for the sale of goods, nor are there any other indications that the website has or will be used as a platform to sell products online. No evidence has been adduced by the Removal Opponent that goes towards substantiating the purpose of this website. Accordingly, I do not consider use of the Trade Mark on the website to be use in the course of trade.

2. Considered holistically, the evidence the Removal Opponent relies on to establish use of the Trade Mark is limited. As a general proposition, the fewer acts of use relied on the more convincingly they need to be established.[16] Where the removal opponent relies on one, or only a few, instances of alleged use, those instances should be established by ‘if not conclusive proof, at any rate overwhelmingly convincing proof’[17]. In this case, while the Removal Opponent does not rely on a single piece of evidence, the success of their opposition, in my view, relies heavily on the use of the Trade Mark on the Removal Opponent’s Facebook page.

   [16] Nodoz Trade Mark (1962) RPC 1, 7 (Wilberforce J).

   [17] Ibid.

3. Having reviewed the entirety of the Removal Opponent’s evidence, and in consideration of the reasons discussed above, I cannot be satisfied that the Removal Opponent has used the Trade Mark in connection with the Trade Mark’s Services during the Relevant Period.

4. As the Removal Opponent has not established use of the Trade Mark or raised any circumstances that were an obstacle to the use of the Trade Mark, I will now consider whether it is appropriate to exercise discretion to allow the Trade Mark to remain registered.

   Discretion

5. Section 101 of the Act provides:

   (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.

   (4) Without limiting the matters the Registrar may take into account in deciding under subsection (3) not to remove a trade mark from the Register, the Registrar may take into account whether the trade mark has been used by its registered owner in respect of:

   (a)  similar goods or closely related services; or

   (b)  similar services or closely related goods;

6. The Removal Opponent bears the onus of satisfying me that that the discretion under section 101(3) of the Act ought to be exercised.[18]

   [18] Austin Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [44] (Jacobson, Yates and Katzmann JJ).

7. In Tivo Inc v Vivo International Corporation Pty Ltd Dodds-Streeton J summarised the considerations relevant to the exercise of Registrar’s discretion:

   In Austin, the Full Court affirmed that Flick J’s view that while public interest, particularly in the integrity of the Register, was the guiding principle behind the discretion, the private commercial interests of parties could be taken into account and the interests of both consumers and traders must be recognised (at [33]-[34]).

   In E&J Gallo, Flick J identified (at [202]) the following factors additional to that in s 101(4) which, while not exhaustive, were also relevant to the exercise of the discretion: whether there has been no abandonment of the trade mark; whether the registered proprietor still had a residual reputation in the mark; whether there had been sales by the registered proprietor in relation to the goods for which removal was sought since the relevant period ended; whether 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 whether the registered proprietors were aware of the applicants’ sales under the mark.[19]

   [19] Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252, [467]-[ 468] (Dodds-Streeton J).

8. The Registrar may consider in deciding whether to remove a trade mark for non-use from the Register whether the trade mark has been used for similar services or closely related goods.[20]

   [20] Trade Marks Act 1995 (Cth) s101(4).

9. The Removal Opponent submits that the discretion not to remove the Trade Mark ought to be applied for the following reasons:

   ·The certification process undertaken by the Removal Opponent demonstrates preparatory steps with an objective intention to use the Trade Mark in respect to retail, wholesale and distribution services.

   ·The Removal Applicant expressly recognised use of the Trade Mark by the Removal Opponent in the letter dated 30 August 2019.

   ·The Removal Opponent’s interests are being prejudiced by the Removal Applicant's Trade Mark Applications.

10. The Removal Applicant submits that the discretion should not be exercised to preserve the Trade Mark because, first, there is no indication that the Removal Opponent plans to use the Trade Mark in the future. Second, there is no evidence of any interest to the public in maintaining the Trade Mark on the Register, or of any reputation or public acknowledgment of the Trade Mark. Third, exercising the discretion would prejudice Removal Applicant’s private interests in proceeding with its own trade mark applications.

11. I am not satisfied that it is reasonable to exercise the Registrar’s discretion in these circumstances. I recognise that some commercial steps have been undertaken by the Removal Opponent in acquiring certification from Australian Certified Organics.   However, in my view, this only indicates that the Removal Opponent intends use the certification trade mark owned by Australian Certified Organics in relation to rice products. It does not suggest that the Removal Opponent has any intention of using the Trade Mark in relation to retail, wholesale or distribution services. Whilst there is some evidence of use of the Trade Mark in connection with rice products, it is not apparent that the Trade Mark has any reputation in Australia in relation to these goods.

12. The Removal Applicant has two pending trade mark applications for services in Class 35 (the Removal Applicant’s Trade Mark Applications). I do not consider the Removal Opponent, or these proceedings, to be prejudiced in any way by these applications. There is no causal connection with the Removal Applicant’s Trade Mark Applications and the Removal Opponent’s failure to use its trade mark. Rather, given the similarity of the Removal Applicant’s Trade Mark Applications to the Trade Mark, it is likely that the private interests of the Removal Applicant would be adversely affected were the Trade Mark to remain registered.

13. I note that the Removal Opponent’s private interests in respect to PRANA NATURA and its use on rice goods appear adequately protected by Trade Mark Number 1610260.

14. With respect to the letter dated 30 August 2019, I do not believe it relevant to the exercise of discretion. The letter may recognise that the Removal Opponent has used the Trade Mark in relation to goods, however, as previously discussed, the evidence does not suggest that the use of the Trade Mark in connection with rice goods is such that it would justify maintaining the Trade Mark on the Register for the Trade Mark’s Services.

15. Considering all of the above, I am not satisfied that it is reasonable to exercise the Registrar’s discretion.

    Decision

16. The Removal Opponent has not established its opposition to the removal of the Trade Mark. Accordingly, I direct that trade mark registration 1595588 be removed from the Register one month from the date of this decision.  

17. 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.  

    Costs

18. The Removal Applicant sought costs. As the Removal Opponent was not successful in their opposition to the application for removal, I award costs against the Removal Opponent under section 221 of the Act in accordance with the amounts detailed in Schedule 8 of the Trade Mark Regulations 1995 (Cth)

    Timothy Brown
    Hearing Officer
    Oppositions and Hearings
    Trade Marks and Designs
    15 February 2022

    Annexure A

    Specification for Trade Mark Number 1610260

    Class 30: Rice; Rice products included in this class; Malted rice for human consumption; GABA rice for human consumption; Malt products for culinary purposes; extruded food products made of rice; Flour for culinary purposes; rice flour for food; Flour products for food; Meal kits made from rice; Snacks made from rice flour; Pasta; Noodles; spaghetti; rice desserts; Bran for culinary purposes; Flavoured rices; Snack food products made from rice flour; Foodstuffs made of rice; Foodstuffs made with flour; Frozen prepared rice; Meals made predominantly from rice; Puffed rice; Rice mixes; Snack food products made from rice; Prepared meals containing (principally) rice; Carbohydrate-based food preparations being dietetic supplements or nutritional additives (not for medical purposes); Natural rice flakes; Tea (not medicinal); Herbs and herb mixture to make tisane; Herbs and herb mixture to make herbal tea; Herbs and herb mixture to make herbal infusion; herb mixture to make chai tea; fruit flavoured infusions (other than for medicinal use); preparations for making beverages in this class; preparations for making tea based beverages in this class; preparations for making beverages (tea, fruit or herbal based); tisanes made of tea (non-medicated); Fruit tea (other than for medical purposes); Herbal beverages (other than for medicinal use); Herbal extracts (other than for medicinal purposes); Herbal infusions (other than for medicinal use); Herbal tea (other than for medicinal use); Iced tea; Instant powder for making flavoured drinks; Instant tea (other than for medicinal purposes); Non-medicated tea products; Non-medicinal infusions; Preparations for making beverages (tea based); Preparations for use in whitening tea (vegetable based); Tea-based beverages; Chai tea; Packaged tea (other than for medicinal use); Malt for human consumption; Batter mixes; Beverages made from cocoa; Bread; Breakfast cereals; Cacao products; Cereal based snack food; Cereal powders; Cocoa; Cocoa based products; Condiments; Cooking salt; Cooking sauces; Curry mixes; Curry paste; Curry spices; Extruded food products made of wheat; Extruded savoury snack foods; Flaxseed for human consumption; Food products containing cereals; Honey; Honeycomb (edible); Sweet spreads (honey); Hot chocolate; Malted food drinks; Muesli; Natural sweetening substances; Non-dairy creamers (carbohydrate based); Non-dairy ice cream; Oat-based food; Palm sugar; Pancake mixes; Pasta products; Poppadums; Powder for making ice cream; Preparations for breakfasts (cereal); Preparations for making beverages (cocoa based); Preparations for making cereals; Preparations for making desserts; Preserved herbs (seasonings); Processed grains for culinary purposes; Processed quinoa; Salad dressings; Salt for cooking; Salt for flavouring food; Sauce mixes; Sauces (condiments); Snack foods made from cereals; Snack foods prep prepared from grains; Sorbets (ices); Food pastes (spices); Spice extracts; Spice mixes; Spices; Tomato based sauces; Vanilla (flavoring) (flavouring); Vegetable pastes (sauces); Vinegar; Flour and preparations made from cereals; cereal bars; cereal based snack food