Opposition by Take-Two Interactive Software, Inc. to registration of trade mark application number 1864669 (classes 9, 16) – TAKE TWO, TWO MINUTES TO… with device - in the name of Take Two App Pty Ltd

[2022] ATMO 20

TRADE MARKS ACT 1995

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

Re:Opposition by Take-Two Interactive Software, Inc. to registration of trade mark application number 1864669 (classes 9, 16) – TAKE TWO, TWO MINUTES TO… with device - in the name of Take Two App Pty Ltd

Delegate:	Katrina Brown
Representation:	Opponent: Griffith Hack Applicant: Self-represented
Decision:	2022 ATMO 20 Trade Marks Act 1995 (Cth) – opposition under section 52 – grounds pursued under ss 42(b), 44, 58, 60 and 62A – s 60 established in respect of some goods in class 9 – no other grounds established – applicant given opportunity to amend goods – goods amended – trade mark to proceed to registration

Background

1. This decision is in respect of an opposition under s 52 of the Trade Marks Act 1995 (Cth) (‘Act’) by Take-Two Interactive Software, Inc. (‘Opponent’) to the registration of the following trade mark:

   Trade Mark No:       1864669

   Trade Mark:             

   (‘Trade Mark’)

   Applicant:                 Take Two App Pty Ltd (‘Applicant’)

   Filing Date:               9 August 2017

   Goods:Class 9: Downloadable software applications for personal development programs

   Class 16: Inspirational cards; greeting cards; stationery

   (‘Applicant’s Goods’)

2. The trade mark application was examined as required under s 31 of the Act. Acceptance of the Trade Mark was advertised in the Australian Official Journal of Trade Marks on 13 September 2018.

3. The Opponent filed a Notice of Intention to Oppose on 13 November 2018, followed by a Statement of Grounds and Particulars (‘SGP’) on 12 December 2018. 

4. The Applicant filed a Notice of Intention to Defend on 14 February 2019.

5. The Opponent filed the following declarations as evidence in this opposition:

   ·Declaration of Hugh Michaels (International Marketing Strategy Director of Rockstar Games, Inc., a wholly owned subsidiary of the Opponent’) made on 2 July 2019 with Annexures A to I (‘Michaels Declaration’); and

   ·Declaration of Hugh Michaels made on 14 August 2020.

6. The Applicant filed the following declaration as evidence in this opposition:

   ·Declaration of Annette Phillips (Director of the Applicant) made on 23 June 2020 with Annexures A to C (‘Phillips Declaration’).

7. After the period for filing evidence ended, the Opponent requested a hearing by way of written submissions. The Opponent filed written submissions, the Applicant did not.  

   Grounds of opposition, onus, and relevant date

8. In the SGP the Opponent nominated grounds of opposition under ss 42(b), 44, 58, 60 and 62A of the Act.

9. The Opponent bears the onus of establishing at least one of the nominated grounds of opposition.[1] The standard of proof is the ordinary civil standard of the balance of probabilities.[2]

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

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

10. The date at which the rights of the parties are to be determined is 9 August 2017 (‘Relevant Date’) being both the filing and priority date of the Trade Mark.

    Section 60

11. Section 60 of the Act provides:

    The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

    (a) another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and

    (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

12. To establish this ground of opposition, the Opponent must demonstrate the existence of a reputation in another trade mark in Australia at the Relevant Date. The Opponent must then establish that because of the aforesaid reputation use of the Trade Mark would be likely to deceive or cause confusion.

13. In the SGP, the Opponent nominated the following trade marks as the basis for this ground of opposition (‘Opponent’s Trade Marks’):

    ·TAKE TWO

    ·TAKE TWO INTERACTIVE

    ·T2

    ·

    Reputation

14. For the purposes of s 60 ‘reputation’ is ‘the recognition of the [trade mark] by the public generally’.[3] It has also been expressed as recognition of the other trade mark by a ‘significant’ or ‘substantial’[4] number of people or potential consumers. Reputation cannot be assumed; it must be established as a matter of fact by the Opponent.[5] In Rodney Jane Racing Pty Ltd v Monster Energy Company it was observed that:

    The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally.[6]

    [3] McCormick & Company Inc v McCormick [2000] FCA 1335 [81] (Kenny J) (‘McCormick’).

    [4] Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170 (Moore, Tamberlin and Goldberg JJ).

    [5] ConAgra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 159 [77] (Lockhart J).

    [6] [2019] FCA 923 [83] (O’Bryan J).

15. In McCormick & Co Inc v McCormick Kenny J further explained:

    In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[7]

    [7] McCormick (n 3) [86].

16. In the Michaels Declaration, the Opponent is described as a developer, marketer and publisher of interactive entertainment. Its products are designed for console systems, hand-held gaming systems, personal computers including smart phones and tablets and are available through physical retail, digital download, online platforms and cloud streaming services.

17. The Opponent has provided financial figures for the fiscal years ending 31 March 2014 to 31 March 2017. The net revenue for each of these years is extremely substantial. The substantial net revenue corresponds with a high number of unit sales. In the four fiscal years ending on 31 March 2017 the game, Grand Theft Auto V, sold more than 80 million units and generated $800 million USD in sales worldwide in a single day. Other titles in the Opponent’s suite of games include: NBA 2K17 with 8 million units sold in the 2017 fiscal year and over 2 billion games of it played; WWE2K17 with 3 million units sold in the 2017 fiscal year; Mafia III with 5 million units sold in the 2017 fiscal year. These figures are global.

18. In Australia, the Opponent’s products are advertised and sold nationally by retailers such as EB Games, JB Hi-Fi, Big W, Target, Game Traders, Harvey Norman, The Gamesmen and Mighty Ape. Additionally, it is declared that the Opponent’s products are available for purchase and download through iTunes, Apple App Store, Google Play and Stream.

19. The Opponent and its products have garnered significant coverage in the Australian media. Annexure I to the Michael’s Declaration contains examples of articles from well-known Australian media outlets with significant circulations such as The Sydney Morning Herald, Adelaide Now, The Australian Financial Review and 9 News. The earliest of these articles is dated 2008, approximately 9 years before the Relevant Date.

20. In respect of the qualitative dimension of the reputation, the Opponent’s game, Grand Theft Auto V, has 7 Guinness World Records as documented in the Sydney Morning Herald on 9 October 2013. These records include: highest grossing video game in 24 hours; highest revenue generated by an entertainment product in 24 hours; fastest video game to gross $1 billion USD.  

21. As is often the case, the Opponent’s evidence, and its submissions in respect of s 60, do not differentiate between its many trade marks. This approach can be problematic because each of the trade marks is treated as a separate mark for the purposes of s 60.[8] However, in this instance I am satisfied that the evidence is sufficient to demonstrate a considerable reputation in the trade mark reproduced below, and to a lesser extent in ‘Take Two’ (‘Opponent’s Take Two Trade Marks’), in relation to computer/video game software, downloadable game software, and the production thereof.  

    [8] Qantas Airways Limited v Edwards [2016] FCA 729 [160] (Yates J).

22. I now need to determine whether, in light of the reputation in the aforementioned trade marks, use of the Trade Mark for the Applicant’s Goods would be likely to deceive or cause confusion.

    Likely to deceive or cause confusion

23. The concepts of ‘deceive’ and ‘confuse’ were explained in the New Zealand case of Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd, where Richardson J said:

    ‘Deceived’ implies the creation of an incorrect belief or mental impression and causing ‘confusion’ may go no further than perplexing or mixing up the minds of the purchasing public. Where the deception or confusion alleged is as to the source of the goods, deceived is equivalent to being misled into thinking that the goods bearing the applicant's mark come from some other source and confused to being caused to wonder whether that might not be the case.[9]

    [9] [1979] RPC 410, 423 (citation omitted).

24. In Australian Postal Foundation Corporation v Digital Post Australia Pty Ltd it was noted that ‘the threshold for confusion is not high’.[10] Importantly confusion can be established ‘even if [the] confusion is unlikely to persist up to the point of, and contribute to, inducing sale’.[11] Also, confusion need not be a case of mistaking one trade mark for another; it can be wondering whether the trade marks, which might be readily distinguished from each other, nonetheless come from the same source.[12]

    [10] [2013] FCAFC 153 [70] (North, Middleton & Barker JJ).

    [11] Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252 [105] (Dodds-Streeton J).

    [12] In the Matter of John Fitton & Co Limited’s Application (1949) 66 RPC 110, 113.

25. Section 60 of the Act does not require a specified standard of similarity between the Applicant’s Goods and the goods or services for which the Opponent has a reputation, nor is there a requirement that the trade marks are substantially identical or deceptive similar. However:

    Confusion cannot arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent's trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.[13]

    [13] Reece Pty Ltd v Rogers Seller & Myhill Pty Ltd [2010] ATMO 5 [39].

26. In this matter, the trade marks all contain the distinctive term ‘Take Two’. Although some of the trade marks contain additional material, ‘Take Two’ is a memorable element of each of the trade marks.

27. Furthermore, I consider that there is an association between the Applicant’s Goods in class 9 and the goods/services for the which the Opponent has a reputation. The Opponent has a reputation for computer/video game software and its production. The wording of the Applicant’s Goods in class 9 is broad enough to include software applications in the nature of games for personal development programs.

28. I am satisfied that there is a real and tangible danger that consumers would, at the very least, be caused to wonder whether there was some connection between goods/services bearing the Opponent’s Take Two Trade Marks and goods bearing the Trade Mark in class 9 to the extent that those goods are software applications in the nature of games.

29. However, I do not think confusion is likely for software applications which are not for, or related to, entertainment. The Opponent’s reputation is only in relation to game software. There is no evidence before me to suggest that the Opponent’s Take Two Trade Marks have been used on, or in relation to, any other types of software. Nor has the Opponent demonstrated that developers/publishers of game software also produce software for non-entertainment purposes. This, combined with the differences in the trade marks is such that I am not satisfied that there is a real and tangible danger of confusion in relation to software not for entertainment purposes.

30. As such, the s 60 ground of opposition has been established only in relation to the goods claimed by the Applicant in class 9, namely downloadable software applications for personal development programs to the extent that those goods are software applications in the nature of games, or for entertainment purposes.

31. I will now consider whether any of the remaining grounds of opposition have been established in respect of the remaining goods in class 9, namely downloadable software applications for personal development programs not being games, or for entertainment purposes (‘Remaining Class 9 Goods’) and the goods claimed by the Applicant in class 16 (‘Class 16 Goods’).  

    Section 44

32. Section 44 of the Act relevantly provides:

    (1)  Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of goods (applicant’s goods) must be rejected if:

    (a)  the applicant’s trade mark is substantially identical with, or   deceptively similar to:

    (i) a trade mark registered by another person in respect of   similar goods or closely related services; or

    (ii) a trade mark whose registration in respect of similar goods   or closely related services is being sought by another person;   and

    (b)  the priority date for the registration of the applicant’s trade mark   in respect of the applicant’s goods is not earlier than the priority   date for the registration of the other trade mark in respect of the   similar goods or closely related services.

33. To succeed the Opponent must establish that the Trade Mark is substantially identical with, or deceptively similar to, another trade mark/s with an earlier priority date, in the name of a person other than the Applicant, in respect of similar goods or closely related services. 

34. In the SGP, the Opponent identifies trade mark numbers 1003523 and 1268734 (‘Opponent’s Registrations’) as the basis for this ground of opposition. The details of the Opponent’s Registrations are as follows:

Trade mark no.	1003523	1268734
Trade mark
Owner	Take-Two Interactive Software, Inc.	Take-Two Interactive Software, Inc.
Priority Date	25 May 2004	22 October 2008
Specification	Class 9: Peripheral equipment for computer games; software namely computer games software; electronic games adapted for use with television receivers, monitors or some other form of display apparatus; electronic games, parts, fittings and accessories therefor Class 35: Retail and wholesale services rendered in relation to peripheral equipment for computer games and software, including computer games software; retail and wholesale services rendered in relation to electronic games and their parts, fittings and accessories.	Class 41: Entertainment; provision of on-line entertainment; providing on-line computer games and/or on-line video games; providing information on entertainment in the field of computer games and video games; production of multimedia for entertainment purposes; production of computer games, video games and software for entertainment purposes.

1. From the information set out above, it is evident that the Opponent’s Registrations are held in a name other than that of the Applicant, and the priority dates are earlier than the Relevant Date.

2. My next consideration is whether the Remaining Class 9 Goods or the Class 16 Goods are similar to the goods, or closely related to the services, claimed by the Opponent’s Registrations.

3. Pursuant to s 14(1) of the Act, ‘similar goods’ are goods that are the same or of the same description. The concept of ‘goods of the same description’ is:

   Generally to be understood in such a sense that, if two different items are held not to fall within the expression, their sale under the same mark by different companies is not likely to lead to confusion or deception.[14] 

   [14] Polo Textile Industries Pty Ltd v Domestic Textile Corporation Pty Ltd [1993] FCA 203 [27] (Burchett J).

4. To determine if goods are similar there are a number of factors to take into account including:

   The nature and characteristics of the goods, their origin, their purpose, whether they are usually produced by one and the same manufacturer or distributed by the same wholesale houses, whether they are sold in the same shops over the same counters during the same seasons and to the same class or classes of customers, and whether by those engaged in their manufacture and distribution they are regarded as belonging to the same trade.[15] 

   [15] Application by John Crowther & Sons (Milnsbridge) Ltd (1948) 65 RPC 369, 372.

5. The concept of ‘closely related’ concerns the relationship between goods and services. In Registrar of Trade Marks v Woolworths Ltd, French J stated:

   The relationships may, and perhaps in most cases will, be defined by the function of the service with respect to the goods. Services which provide for the installation, operation, maintenance or repair of goods are likely to be treated as closely related to them. Television repair services in this sense are closely related to television sets as a class of goods. A trade mark used by a television repair service which resembles (to use the language of s 10) the trade mark used on a prominent brand of television sets could be deceptively similar for suggesting an association between the provider of the service and the manufacturer of the sets.[16]

   Remaining Class 9 Goods

   [16] [1999] FCA 1020 [38].

6. In my assessment, the Remaining Class 9 Goods are not similar to the goods of the Opponent’s Registrations. The class 9 goods for which trade mark 1003523 is registered are computer game software, electronic games and peripheral equipment for computer games. Each of these claims is confined to computer or electronic games. Software or peripheral equipment for games has a different nature and use to software for personal development programs which are not games or for entertainment purposes.

7. Similarly, each of the claims of trade mark 1268734 in class 41 are services in relation to entertainment, computer games and online gaming. It is not obvious to me how these services perform a function with respect to the Remaining Class 9 Goods, none of which are computer games or for entertainment purposes. I do not consider these services to be closely related to the Remaining Class 9 Goods.

   Class 16 Goods

8. In my assessment, the Class 16 Goods are not similar to the goods of the Opponent’s Registrations. Broadly speaking, the class 9 goods for which trade mark 1003523 is registered are peripheral equipment for computer games, computer game software, electronic games, and parts, fittings and accessories for the aforementioned. It is readily apparent that those goods do not have the same nature, use or trade channels as stationery and greeting cards.

9. Additionally, I do not consider the Class 16 Goods to be closely related to any of the services claimed by the Opponent’s Registrations. It is not obvious to me, nor has the Opponent submitted or demonstrated, the existence of the type of relationship envisioned by French J. The services of the Opponent’s Registrations do not perform a function with respect to the Class 16 Goods.  

1. For the above reasons, I do not consider the Remaining Class 9 Goods or the Class 16 Goods to be similar to the goods, or closely related to the services, of the Opponent’s Registrations. Accordingly, the ground of opposition under s 44 of the Act has not been established.

   Section 58

2. Section 58 of the Act provides:

   The registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark.

3. The term ‘owner’ is not defined in the Act. However, it is well established that in the absence of fraud, the owner of a trade mark is the person who first uses it in Australia, or first files a trade mark application for it in Australia, whichever is the earlier.

4. In the SGP the Opponent’s Trade Marks are nominated as the basis for this ground of opposition. There are several requirements to make out this ground including that the goods or services of the competing trade marks are the ‘same kind of thing’.[17]

   [17] Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd [2017] FCAFC 83 [50] (Greenwood, Jagot and Beach JJ).

5. Goods considered to be the ‘same kind of thing’ are goods ‘that are essentially the same, though they may differ in size, shape and name’.[18] In Colorado Group Limited v Strandbags Group Pty Limited (‘Colorado’) Allsop J stated:

   The aim of the enquiry is not to find some broad genus in which some common functional or aesthetic purpose can be identified. Nor is it an enquiry about the type of trade in which concurrent use might cause confusion. Rather, it is identifying, in a practical, common sense way, the true equivalent kind of thing or article.[19] 

   [18] Colorado Group Limited v Strandbags Group Pty Limited [2007] FCAFC 184 [14] (Kenny J) (‘Colorado’).

   [19] Ibid [89].

6. The observations of Allsop J are equally applicable to services. Applying these principles, hatchets (small axes) have been considered the same kind of thing as axes,[20] but bags, wallets and purses were considered not to be the same kind of thing as backpacks.[21] 

   [20] Jackson & Co v Napper (1886) 35 Ch D 162, 177-8 (Stirling J).

   [21] Colorado (n 18).

7. In this matter, the Opponent’s Trade Marks have been used on, or in relation to, computer game software, downloadable game software, and the production thereof. The Opponent’s Registrations are also in respect of these goods and services.

8. The test for the ‘same kind of thing’, as the above authorities indicate, is narrower than the assessment required under s 44 for ‘similar goods’ or ‘closely related’ goods and services. Given that I have already found that the Remaining Class 9 Goods and Class 16 Goods are not similar or closely related to any of the goods or services claimed by the Opponent’s Registrations, it follows that they also cannot be appropriately characterised as the ‘same kind of thing’ as the Remaining Class 9 Goods or the Class 16 Goods.

9. Accordingly, the ground of opposition under s 58 of the Act has not been established.

   Section 42(b)

10. Section 42(b) of the Act provides that an application for the registration of a trade mark must be rejected if its use would be contrary to law.

11. The Opponent must satisfy the Registrar that use of the Trade Mark would not could be contrary to law.[22] As observed by Rangiah J in Primary Health Care Limited v Commonwealth of Australia:

    It is not enough for a party opposition registration to show that s 18 of the ACL [Australian Consumer Law] or s 52 of the TPA [Trade Practices Act 1974] might be contravened. The opponent must prove, on the balance of probabilities, that the provision would be contravened by use of the trade mark.[23]

    [22] Advantage-Rent-A-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683 [28] (Madgwick J).

    [23] [2017] FCAFC 174 [411] (emphasis in original).

12. The Opponent submits that use of the Trade Mark would be contrary to ss 18 and 29 of the Australian Consumer Law (‘ACL’) which forms Schedule 2 to the Competition and Consumer Act 2010 (Cth).

13. The relevant provisions of the ACL require that I be satisfied that there is a likelihood that relevant consumers would be misled or deceived as to the true origin of the Class 16 Goods or as to them having some connection with the Opponent. This is a stricter requirement than s 60 which only requires conduct that would be likely to deceive or cause confusion.

14. As already indicated in respect of s 60, I am not satisfied that use of the Trade Mark in respect of the Remaining Class 9 Goods or the Class 16 Goods is likely to cause deception or confusion with the Opponent’s Trade Marks. It follows that, on the stricter test posited by the ACL, I am not satisfied that use of the Trade Mark in respect of the Remaining Class 9 Goods or the Class 16 Goods is likely to mislead or deceive or amount to a false or misleading representation.

15. Accordingly, the ground of opposition under s 42(b) of the Act has not been established.

    Section 62A

16. 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.

17. The phrase ‘bad faith’ is not defined in the Act. In DC Comics v Cheqout Pty Ltd, Bennett J explained:

    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.[24]

    [24] [2013] FCA 478 [62].

18. The particularisation of this ground of opposition includes the following:

    Given the extent of the Opponent’s use and reputation in the TAKE TWO Marks, including its reputation in TAKE TWO as a business name and as the name of a publisher of software, the Applicant’s conduct in making the application shows that it intended to strengthen the allusion to the Opponent and to use its mark to gain an unfair advantage for its business. The Applicant’s filing of the application in those circumstances constitutes an attempt to mis-appropriate the property and goodwill of the Opponent, and fell short of acceptable commercial standards observed by reasonable and experienced persons.

19. In this matter, the Opponent has not established that the Applicant was aware of the Opponent’s Trade Marks or business name, including any use or reputation, at the time of filing the trade mark application. Furthermore, mere knowledge or awareness is not, without more, an indication of bad faith.

20. The Opponent has not provided cogent evidence to support its assertions under s 62A of the Act. In the absence of such evidence, I cannot be satisfied that the trade mark application was made in bad faith. In this respect I note the following observations of the Registrar’s delegate in Hard Coffee Pty Limited v Hard Coffee Main Beach Pty Limited:

    The onus of demonstrating ‘bad faith’ falls squarely on the party making such an allegation with the need for evidence able to fulfil the degree of proof required to satisfy the civil standard of ‘balance of probabilities’. That said, the allegation of ‘bad faith’ is a very serious one and a finding of bad faith should not be taken lightly.[25]

    [25] [2009] ATMO 26 [12] (emphasis added).

21. Accordingly, the ground of opposition under s 62A of the Act has not been established.

    Decision

22. Section 55 of the Act relevantly provides:

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

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

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

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

23. I am satisfied that a ground of opposition had been established under s 60 of the Act in respect of some of the goods in class 9.

24. None of the other grounds of opposition have been established.

25. On 3 February 2022 I informed the Applicant that it was my intention to refuse registration of the Trade Mark unless the specification was amended in class 9 to: downloadable software applications for personal development programs namely software for generating motivational texts to improve relationships.

26. On 11 February 2022 the Applicant agreed to the amendment and the specification in class 9 has been amended. Class 16 remains unchanged.

27. The Trade Mark can now proceed to registration.

    Costs

28. The parties sought cost. As both parties were, strictly speaking, partly successful I decline to award costs.

    Katrina Brown
    Hearing Officer
    Oppositions and Hearings
    Trade Marks and Designs
    14 February 2022