Paypal, Inc v Braintree Communications Pty Ltd
[2017] ATMO 90
•22 August 2017
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Braintree Communications Pty Ltd to registration of trade mark application 1579864 (36) - BRAINTREE - filed in the name of Paypal, Inc.
Delegate: | Iain Campbell Thompson |
Representation: | Opponent: Ben McEniery of Counsel instructed by Tucker & Cowen, Solicitors Applicant: David Larish of Counsel instructed by King & Wood Mallesons |
Decision: | 2017 ATMO 90 Trade Marks Act 1995 Section 52 opposition to registration: section 44 – ‘similar services’ and ‘closely related goods and services’ considered - opposition not established. |
Background
In this matter Paypal, Inc, (‘the Applicant’) has made application under the Trade Marks Act 1995 (‘the Act’) for the registration of the trade mark which appears below:
Application No: 1579864
Priority Date: 18 July 2017
Goods:Class 36: Credit card payment processing services; credit card transaction processing services; payment processing services, namely, providing electronic processing of electronic funds transfer, ACH (automated clearing house), credit card, debit card, electronic check and electronic payments
(‘the Applicant’s Specification’)
Trade Mark: BRAINTREE
(‘the Trade Mark’)
The Trade Mark was examined as mandated by section 31 of the Act and advertised as accepted for possible registration on 29 January 2015 in the Australian Official Journal of Trade Marks.
On 26 March 2015, Braintree Communications Pty Ltd (‘the Opponent’) filed a Notice of Intention to Oppose the registration of the Trade Mark followed, on 26 April 2015, by a Statement of Grounds and Particulars citing grounds under sections 44 and 60 of the Act. The latter ground was formally withdrawn at the hearing.
On 12 May 2015 the Applicant filed a Notice of Intention to Defend.
Subsequently, the parties have filed their respective Evidence in Support, Evidence in Answer and Evidence in Reply. I will further discuss this evidence below.
Both parties requested a hearing which was before me as a delegate of the Registrar of Trade Marks. The hearing was in Canberra on 6 July 2017; Ben McEniery of Counsel instructed by Tucker & Cowen, Solicitors, represented the Opponent; David Larish of Counsel instructed by King & Wood Mallesons represented the Applicant.
Onus
The Opponent bears the onus of establishing one or more grounds of opposition on the balance of probabilities.[1]
[1] Pfizer Products Inc v Karam [2006] FCA 1663; 237 ALR 787; (2006) 70 IPR 599; [2006] AIPC 92-146 per Gyles J at [6] to [26]; Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2015] FCAFC 156 at [132]-[133].
The relevant date at which the sole ground under section 44 of the Act must be considered is the priority date of the opposed application.[2]
[2] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592.
Evidence
The evidence is comprised of the following declarations:
In Support
Peter Richard Hamilton Mason, director of the Opponent, made on 5 August 2016 with attachments thereto;
In Answer
Clifford C. Webb, Head of Trademarks, Copyrights, and Domains of the Opponent, made on 29 July 2016, with Exhibits CW-1 -CW-3.
In Reply
Peter Richard Hamilton Mason, director of the Opponent, made on 11 October 2016, and exhibit PRM-1.
Relevantly the Statement of Grounds and Particulars shows that the Opponent relies on the Australian trade mark registration which appears below:
Registration No: 860587
Priority Date: 11 December 2000
Goods/Services: Class 9: Transmission, receiving and storage equipment, apparatus and systems; including but not limited to computer software, computer hardware, macros, CD-ROMs, disks and modems; all associated parts, accessories and fittings
Class 38: Telecommunication services; telecommunication services namely short duration transaction systems used in relation to, but not limited to, payment server systems, alarm systems, security systems, surveillance systems, defence systems, lottery systems, gambling systems, telemetry systems, electronic funds transfer systems, point of sale systems, packet handling systems and transaction gateway systems
Class 42: Computer programming services; computer design services; services for maintenance and modification of computer software; computer program design consultancy services; providing access to and leasing access time to computer databases; on-line computer services
(‘the Opponent’s Specification’)
Trade Mark:
(‘the Opponent’s Trade Mark’)
Further, my understanding of the Statement of Grounds and Particulars and the Opponent’s submissions at the hearing is that its contentions in opposition to the registration of the Trade Mark rely only on Classes 9 and 38 of the Opponent’s Specification.
The supporting materials annexed to Mr Mason’s first declaration describe the Opponent’s goods and services:
The Axon - G4020 enables temporary EFTPOS and ATM locations for events such as market stalls, trade shows; kiosks, mobile service centres or remote locations where landline connections are too costly or slow. With the Axon - G4020, you can take the till to the product, not the product.to the till. Other retail applications include:
·Add extra points of sale during busy trading periods.
·Add temporary .points of sale for outside stock locations - eg: hardware or building products
·Relocated stores infrastructure with less cabling requirements
·Disaster recovery for key retail sites
·Boat and ship based EFTPOS and ATM within line-of-sight·of Australian coastline eg river cruises and marinas.
Braintree specialises in developing solutions to allow legacy transaction equipment to connect to modern IP platforms using intelligent protocol conversion. Braintree provides expertise in Short Duration Transaction Networks such as Point-Of-Sale applications, defence and financial services and other transaction-based data communications.
As issues of concurrent or prior use do not arise in this decision it is unnecessary to further discuss the evidence filed by the parties.
Section 44
Relevant to my decision, section 44 provides:
44Identical etc. trade marks
[…]
(2)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:
(a)it is substantially identical with, or deceptively similar to:
(i)a trade mark registered by another person in respect of similar services or closely related goods; or
(ii)a trade mark whose registration in respect of similar services or closely related goods 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 services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.
Note 1:For deceptively similar see section 10.
Note 2:For similar services see subsection 14(2).
Note 3:For priority date see section 12.
Note 4:The regulations may provide that an application must also be rejected if the trade mark is substantially identical with, or deceptively similar to, a protected international trade mark or a trade mark for which there is a request to extend international registration to Australia: see Part 17A.
The Opponent’s Trade Mark has an earlier priority date than that of the Trade Mark. Accordingly, to found this ground the Opponent must establish to the Registrar’s satisfaction that the Opponent’s Trade Mark is registered in respect of:
· similar services or closely related goods; and is
· substantially identical with, or deceptively similar to, the Trade Mark.
In Registrar of Trade Marks v Woolworths[3] French J observed:
Apposite to the present case is the question whether a retailer of various classes of goods provides a service to customers which warrants the description of the goods for sale as "closely related goods" in respect of that service. The characterisation of the relationship between services and goods in this way is evaluative. The logic of subs 44(2) suggests that the determination whether goods are closely related to the services in question is logically antecedent to the determination whether the trade mark in respect of the services is deceptively similar to that in respect of the goods.
[3] [1999] FCAFC 1020; [1999] FCA 1020; (1999) 93 FCR 365; (1999) 45 IPR 411; [1999] AIPC 91-499 at [39].
Section 10 of the Act provides:
10Definition of deceptively similar
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
In view of the above definition there is a practical difficulty in finding that two trade marks are deceptively similar if the goods and services in question are not similar or closely related: for the purposes of section 44, if the goods and services are not similar or closely related there can be no deception or confusion no matter what the degree of similarity between the trade marks might be. I will accordingly first consider whether the Opponent’s Specification contains similar services or closely related goods to the services within the Applicant’s Specification.
The Submissions
It is convenient to initially dispose of a contention which underpins the bulk of the Opponent’s arguments concerning the degree of similarity or ‘relatedness’ of the parties’ goods and services.
Mr McEniery’s submissions, for the Opponent, are in large part, predicated upon the view that:
The Opponent, broadly speaking, provides payment gateways. It also provides transaction-processing services. PayPal’s services allow merchants to accept payments online without the need to set up payment gateways (that is, it provides transaction processing services). In his declaration made 11 October 2016 at paragraph 11, Mr Mason deposes that “...there is no substantial difference between the electronic payment processing services provided by Braintree and the Applicant. Both provide the ability for merchants to have a payment received by a merchant to be checked initially by a payment gateway provider and then sent to the financial institution for processing.”
However, the above submission appears to be based upon a postulated registration of the Opponent’s Trade Mark for ‘credit card transaction processing services’ similar to those of the Applicant: the Opponent has no such registration nor does the Opponent’s Specification refer to any such services. My considerations under section 44 are limited to discussion of goods and services falling within the Opponent’s Specification and not to any other services that it contends that it has performed with reference to the Opponent’s Trade Mark.
Similar Services
Section 14 of the Act defines:
14Definition of similar goods and similar services
[…].
(2)For the purposes of this Act, services are similar to other services:
(a)if they are the same as the other services; or
(b)if they are of the same description as that of the other services.
The expression ‘services of the same description’ was recently discussed by Greenwood, Besanko and Katzmann JJ in Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd[4]:
[4] [2017] FCAFC 56 at [333].
The starting point in determining the scope of the phrase “services of the same description as that of [the registered services]” in s 120(2)(c) is the statement of principle in Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1953] HCA 73; (1954) 91 CLR 592 at 606 by Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ (notwithstanding that the question involved consideration of whether goods were goods of the same description), in these terms:
There may be many matters to be considered apart from the inherent character of the goods [or services] in respect of which the application is made and some indication of what matters are relevant to this inquiry was given by Romer J. in In re Jellinek’s Application. Romer J. thought it necessary to look beyond the nature of the goods [or services] in question and to compare not only their respective uses but also to examine the trade channels through which the commodities in question where bought and sold. Shortly after the decision in Jellinek’s Case the Assistant Comptroller elaborated on the observations Romer J. in the following manner: “In arriving at a decision upon this issue the reported cases show that I have to take account of a number of factors, including in particular the nature and characteristics of the goods [or services], 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. In the case of Jellinek’s Application, Romer J. classified these various factors under three heads, viz., the nature of the goods, the uses thereof, and the trade channels through which they are bought and sold. No single consideration is conclusive in itself, and it has further been emphasised that the classifications contained in the schedules to the Trade Mark Rules are not a decisive criterion as to whether or not two sets of goods are ‘of the same description’”.
Dixon J had said much the same thing in Reckitt & Colman (Australia) Ltd v Boden [1945] HCA 12; (1945) 70 CLR 84 at 94 when his Honour observed:
What forms the same description of goods [or services] must be discovered from a consideration of the course of trade or business. One factor is the use to which the two sets of goods are put. Another is whether they are commonly dealt with in the same course of trade or business. In the present case, the goods are quite different, their uses are widely separated and they are not commonly sold in the same kinds of shops or departments.
There is no good reason to believe that these statements of principle do not apply in relation to services for the purposes of s 120(2)(c) and, in fact, they have been found to so apply: MID Sydney Pty Ltd v Australian Tourism Co Ltd[5], [‘Mid Sydney’], Burchett, Sackville and Lehane JJ at 243 and 244. Plainly enough, the calculus of factors may alter when the question becomes one of applying the principles to services. By way of illustration, the Full Court at 242 and 244, supra at [241] of these reasons, concluded that the services involved in conducting “an hotel business” including the accommodation of guests, the operation of restaurants and bars and the provision of conference and business facilities and other services normally offered by hoteliers (the impugned services), had different characteristics from services described as “property management services” (the registered services) and thus, those services could not be described as services of the same description as property management services. Those conclusions were reached by the Full Court by construing the words “property management services” and taking into account the evidence given by service providers as to the features of the various services.
[5] MID Sydney Pty Ltd v Australian Tourism Co Ltd [1998] FCA 1616; (1998) 90 FCR 236; (1998) 42 IPR 561; [1999] AIPC 39-051 at [241].
[…]
As to whether particular impugned services might properly be understood as services of the same description as services for which a trade mark is registered, the features to be considered are likely to include these considerations:
(1) The inherent character of each of the services for which the trade mark is registered. That may emerge as a function of language but it is likely to be the subject of evidence: for example, what does “an hotelier” actually do? What precisely is involved in providing “property management services”?
(2) To whom are the services offered?
(3) How are they provided?
(4) How are they used?
(5) What is their purpose?
(6) Are they bundled together with other services?
(7) Are they differentiated by the functional level at which they are provided: wholesale or retail?
(8) Where do they originate?
(9) What is the method of their communication to the relevant target audience: is it predominantly by electronic means, domain names, websites, Twitter, Facebook or other means such as other trade brochures and journals?
(10) How closely contestable are the services in substance: are they in the same market or trade?
(11) How might consumers of the services perceive the services: see, for example, E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2009] FCAFC 27; (2009) 175 FCR 386, per Moore, Edmonds and Gilmour JJ at [71][73].
Within Class 38 of the Opponent’s Specification the services are described as being in relation to ‘short duration transaction systems used in relation to, but not limited to, payment server systems, alarm systems, security systems, surveillance systems, defence systems, lottery systems, gambling systems, telemetry systems, electronic funds transfer systems, point of sale systems, packet handling systems and transaction gateway systems’.
In my view of the above, what the Opponent’s services do is, in effect, is to enable communication of data which might be used as part of an electronic payment (EFTPOS) system but may also function in relation to ‘alarm systems, security systems, surveillance systems, defence systems, lottery systems, gambling systems, telemetry systems, packet handling systems and transaction gateway systems’. The fact that the most common application of the Opponent’s services has been as a part of EFTPOS systems does not, in my view, colour them as being services of the same description as those within the Applicant’s Specification. Further, to so colour them would be to confuse the services associated with the provision of the medium with both the data carried by that medium and the subsequent services rendered upon that data. By way of a simple analogy, a plumber who may install taps, pipes, drains, and pumps is not in the businesses of water supply or of effluent treatment. Alternatively put, if the Opponent’s services had been commonly used by lottery providers, this would not dictate that those services were of the same description as the ‘lottery systems’ mentioned within the Opponent Specification: the Opponent is not in the business of providing lottery services but rather of providing systems to enable them. From this viewpoint the services within the Opponent’s Specification are quite distinct from those within the Applicant’s Specification: any similarities between the services are superficial and, in terms of MID Sydney, incidental. The services within the Opponent’s Specification are not of the same description as those within the Applicant’s Specification.
The same observations are also true of the wider claim, ‘Telecommunications services’ within the Opponent’s Specification. Whilst the services within the Applicant’s Specification might be provided via a ‘telecommunications service’, the provision of a ‘telecommunications service’ is not of the same description as the provision of the specialised financial services which occur within the Applicant’s Specification.
The Opponent does not contend that any of the services within Class 42 of the Opponent’s Specification are of the same description as any of those within the Applicant’s Specification and for the sake of completeness I find that they are not.
Closely related goods
In Qantas Airways Ltd v Edwards[6] Yates J quoted from the judgment of French J in Registrar of Trade Marks v Woolworths Ltd[7]:
... The term “closely related” recognises that goods and services are different things. There will be classes of goods which are similar to each other. There will also be classes of services which are similar to each other. But the word “similar” does not apply as between goods and services. So there must be some other form of relationship between the services covered by one mark and the goods covered by another to enable the goods or services in question to be described as “closely related”. ...
[6] [2016] FCA 729 at [111].
[7] (1999) 93 FCR 365; [1999] FCA 1020 at [37].
Yates J continued:
His Honour also said in this connection that “closely related” was of wider import than “similar”.
Woolworths was a case arising under s 44(2) of the Act. Thus, the question was whether, in the case of a mark for services, there was conflict with a previously registered mark for “closely related goods”. His Honour gave (at [38]) the following illustrations where goods and services might be “closely related”:
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. ...
His Honour also made reference to Caterpillar Loader Hire (Holdings)Pty Ltd v Caterpillar Tractor Co (1983) 77 FLR 139; [1983] FCA 143 (Caterpillar) in which Lockhart J said (at 150):
... It is obvious that there is likely to be confusion if substantially the same or deceptively similar trade marks are used by different proprietors, one for goods and the other for services, where the goods and services are closely related. Examples that present practical difficulties are the sale of goods such as data processing equipment and the sale of programs for their operation; the sale of curtains and furnishing materials on the one hand, and the sewing of curtains on the other, as interior decorators often sell curtains and perform the service of sewing; the sale of clothes on the one hand and tailoring on the other because the service of custom tailoring is frequently provided in addition to the sale of ready-made clothes; and the sale of educational material on the one hand and educational services (language courses, home study programs) on the other.
Significantly, in Woolworths, French J (at [38]) also said that the range of relationships between goods and services which may support the designation “closely related” will be “limited by the requirement in s 44(2) that there be a substantial identity or deceptive similarity between the potentially conflicting marks which attach to them”. This observation might suggest that his Honour had in mind that, in a case arising under s 44 of the Act, the determination of whether the goods and services are “closely related” will be informed by the determination of whether the competing marks are, in fact, deceptively similar.
However, at [38] his Honour continued by stating that “[t]he relationships may, and perhaps in most cases will, be defined by the function of the service with respect to the goods” (emphasis added). It was in this context that his Honour gave the examples quoted at [113] above and referred to the examples given by Lockhart J in Caterpillar. This part of his Honour’s reasoning suggests that the question of whether goods and services are “closely related” is a discrete question within the injunction against registration provided by s 44 of the Act.
This understanding is supported by the following passage in [39] of his Honour’s reasons:
... Apposite to the present case is the question whether a retailer of various classes of goods provides a service to customers which warrants the description of the goods for sale as “closely related goods” in respect of that service. The characterisation of the relationship between services and goods in this way is evaluative. The logic of s 44(2) suggests that the determination whether goods are closely related to the services in question is logically antecedent to the determination whether the trade mark in respect of the services is deceptively similar to that in respect of the goods. Wilcox J at first instance in this case saw the questions as “conceptually distinct” but accepted that one could not be addressed in isolation from the second: “The closer the relationship between the services and particular goods, the more likely any similarity in marks will prove deceptive.” This approach is not greatly assisted by the language of s 10 which, like s 6(3) of the 1955 Act, defines deceptive similarity solely in terms of the degree of resemblance of the trade marks in question and whether that degree of resemblance is “likely” to deceive or cause confusion. But that definition must, in the context of s 44, be applied to the case of “closely related” goods and services.
His Honour concluded at [40]:
In the end there is one practical judgment to be made. Whether any resemblance between different trade marks for goods and services renders them deceptively similar will depend upon the nature and degree of that resemblance and the closeness of the relationship between the services and the goods in question. It will not always be necessary to dissect that judgment into discrete and independent conclusions about the resemblance of marks and the relationship of goods and services. Consistently with that proposition, the Registrar or a judge on appeal from the Registrar could determine in a particular case that, given the limited degree of resemblance between the relevant marks he or she could not be satisfied, no matter how closely related the goods and services concerned, that the use of the applicant’s marks would be likely to deceive or to cause confusion.
The practical judgment to which his Honour referred in the last passage is, quite clearly, the judgment involved in determining whether the two marks are deceptively [similar]. The passage marks his Honour’s acceptance that the question of deceptive similarity between allegedly conflicting marks will be informed, in part, by the closeness of the relationship between the goods and services in respect of which the marks severally are, or are sought to be, registered. I do not accept that his Honour was there directing attention to the judgment involved in determining whether given goods and services are “closely related” as such.
There are, in my consideration, difficulties in properly construing the Opponent’s Specification in Class 9, ‘Transmission, receiving and storage equipment, apparatus and systems; including but not limited to computer software, computer hardware, macros, CD-ROMs, disks and modems; all associated parts, accessories and fittings.’ It is not obvious, for instance, that ‘computer software, macros, and CD-ROMs’ are included within the generalisation ‘Transmission, receiving and storage equipment, apparatus and systems’. Further, a CD-ROM (being read only memory) is not an item for storage of information but is an item on which information is already stored.
Additionally, the generalization ‘Transmission, receiving and storage equipment, apparatus and systems; including but not limited to …’ is so vague as to the nature of the goods involved as to be, in essence, meaningless – the expression could refer to the transmission, receiving and storage of virtually anything (either data or radio waves), that is capable of being transmitted.
This issue is akin to that referred to by the then Assistant Registrar of Trade Marks in Re Barnes Milling Ltd's Trade Mark[8] (‘Barnes Milling’) where he observed:
Doubtless many applicants reiterate on their application those goods listed under the particular class specified in the Fourth Schedule to the Trade Marks Regulations. This practice is referred to as a claim for a class heading. I have no doubt that the term class heading is universally used and readily understood by trade mark lawyers, trade mark agents and by most of those for whom they act. There is an ever-present danger of course that when applicants claim a class heading instead of specific goods, a tribunal might subsequently find that the specific goods a registered proprietor might think are covered by his registration are not, in fact, embraced by the goods comprehended in the class heading which the proprietor nominated on his application.
As a trade mark owner's trade mark rights derive from the goods and/or services in respect of which registration is sought, specifications of goods should be clear and unambiguous. Interpretation of a class heading as something beyond the generic descriptions listed in that heading could lead to ambiguities, and this would not be in the public interest.
[Stress added]
[8] (1965) 35 AOJP 844 at 845.
And in Nikken Wellness Pty Ltd v van Voorst[9] Wilcox J stated:
Counsel also argue it does not matter that the wrong class is claimed. They quote the statement in Kerly's Law of Trade Marks and Trade Names (12th ed) at para 5-05:
‘Classification is primarily a matter of convenience in administration ... What is of real importance in determining the rights of the parties, as has been pointed out, is the specification of goods or services entered on the Register and the validity of the registration.'
The submissions made by counsel for Nikken Wellness must be accepted. The Register is an official record open to inspection by members of the public: see s 209 of the Act. The Register is prima facie evidence of any particular matter entered in it: see s 210. A certified extract from the Register is admissible in legal proceedings: see s 211(2). Parliament must have intended the Register to speak for itself. People who peruse the Register, or an extract from it, must be able to act on the basis of what it says, without being obliged to make inquiries about the business history or previous conduct of the registered owner of the trade mark.
[Stress added]
[9] [2003] FCA 816; [2003] AIPC 91-904 at [43].
Similarly here, it is necessary to refer the evidence led by the Opponent in order to ascertain what the Class 9 entry in the Opponent’s Specification might mean. In Barnes Milling the Assistant Registrar declined to find that the expression ‘farinaceous foods’ includes ‘flour’.
However, were the Opponent’s Specification to be held to include goods being ‘data transmission, receiving and storage equipment, computer apparatus and systems’, it would be pertinent to observe that the Opponent’s contentions are again, in essence, that those goods are closely related to the Applicant’s services performed upon the information that they might receive, convey or store. At its most extreme, any reasoning which held those goods to be closely related to the services within the Opponent’s Specification would also find that the same goods, being capable of transmitting, receiving and storing music or video, are also closely related to entertainment services. In the circumstances here before the Registrar, this line of reasoning is an obvious fallacy as it wrongly conflates the goods with the services performed upon or in relation to the information that those goods contain, receive, or transmit.
It follows that the goods within the Opponent’s Specification are not closely related to the services within the Applicant’s Specification.
As the Opponent has not established that the goods and services within the Opponent’s Specification are similar services or closely related goods to the services within the Applicant’s Specification, there is no requirement to consider the similarity of the parties’ trade marks.
The Opponent has not established the ground under section 44 of the Act.
Decision
Section 55 of the Act relevantly provides:
55Decision
(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.
Note:For limitations see section 6.
The opposition has not been established.
The trade mark application may then proceed to registration one month from the date of this decision. If the Registrar has been served with a notice of appeal before that time, I direct that registration shall not occur until the appeal has been decided or discontinued and the disposition of the application should be in accordance with the Court’s order or direction.
Costs
Both parties requested their costs. The Applicant, having been successful, is entitled to its costs which I award against the Opponent at the official scale at Schedule 8 to the Trade Mark Regulations 1995.
Iain Campbell Thompson
Hearing Officer
Trade Marks Hearings
22 August 2017
38
11
0