PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd

[2020] ATMO 132

TRADE MARKS ACT 1995

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

Re:Opposition by PDP Capital Pty Ltd to registration of trade mark application number 1835886 (class 30) – WICKED (Word) - in the name of Grasshopper Ventures Pty Ltd.

Delegate:	Kate Doherty
Representation:	Opponent: S Stewart of Counsel, i/b Clayton Utz Applicant: D Larish of Counsel, i/b K Newcombe
Decision:	2020 ATMO 132 Trade Marks Act 1995 (Cth) – opposition pursuant to section 52 – Grounds of opposition pursued ss 41, 42(b), 44, 58, 59, 60 and 62A; s 41 established; trade mark will not proceed to registration.

Background

1.    This is an opposition decision following an online hearing on 6 April 2020. I heard the matter as Delegate of the Registrar of Trade Marks for the following trade mark pursuant to the Trade Marks Act 1995 (‘the Act’):

Trade Mark No:               1835886

Trade Mark:   WICKED (‘Trade Mark’)

Words:  WICKED

Filing date:   28 June 2011 (Divisional)

Applicant:  Grasshopper Ventures Pty Ltd

Specification of Goods: (at time of filing):  Class 30

Dips including chocolate dips and savoury dips; desert foods in this class including chilled and frozen sweet mousses, chocolate mousses and white mousses, desert toppings and sauces including chocolate toppings and sauces and fruit-flavoured toppings and sauces; sauces (condiments); ice

2.    In response to the Examiner’s assessment of the evidence, the Applicant’s attorney made an application on 28 June 2018 to amend the goods within the class (‘the Applicant’s goods’):[1]  The amended specification applies in this opposition proceeding:

[1] Letter by eServices dated 28 June 2018 from K Newcomb.

Class 30: Dips including chocolate dips; desert foods in this class including chilled and frozen sweet mousses, chocolate mousses and white mousses, dessert toppings and sauces including chocolate toppings and sauces

3. The Trade Mark was advertised accepted on 12 July 2018. A Notice of Opposition was filed on 12 September 2018 by PDP Capital Pty Ltd (‘The Opponent’). On 12 September 2018, the Applicant filed a Notice of Intention to Defend the Opposition. The Statement of Grounds and Particulars (‘SGP’) was deemed adequate on 5 December 2018, and nominates the grounds of opposition ss 41, 42(b), 44, 58, 59, 60 and 62A.

Evidence

4.    Summary of evidence received from the parties:

Declarant	Party	Evidence Stage	Date	Annexures	Decision Reference
P Polly	Opponent	EIS	20 March 2019	A-Z-AA	Polly Declaration
B Doyle	Opponent	EIS	20 March 2019	1-6	Doyle Declaration
R Valentine	Applicant	EIA	5 July 2019	A-Z-AB	Valentine Declaration
B Doyle	Opponent	EIR	9 September 2019	1 only	Finch Affidavit
B Doyle	Opponent	EIR	9 September 2019	1 only	Masluk Affidavit
B Doyle	Opponent	EIR	9 September 2019	1 only	Brebbia Affidavit
B Doyle	Opponent	EIR	9 September 2019	1 only	Medley Affidavit
B Doyle	Opponent	EIR	9 September 2019	1 only	Polly Affidavit
B Doyle	Opponent	EIR	9 September 2019	1 only	FOI Declaration
P Polly	Opponent	r 21.19	5 February 2020	A-C	Further Evidence

The declarations annex evidence which includes copies of: product images, confidential sales figures, invoices, information in relation to sponsorship and promotional activities, screenshots of websites, copies of Wayback evidence, and email correspondence.

The Opponent’s Evidence

5.    The Opponent filed copies of the Brebbia Affidavit which asserts an instance of actual confusion in November 2017, the Finch Affidavit which annexes various product images at point of sale taken in 2019 as well as website and social media evidence, the Medley Affidavit which asserts an instance of actual confusion in 2016, the Masluk Affidavit which asserts an instance of actual confusion in 2018, the Polly Affidavits seek to characterise the business including the quantity of sales and intellectual property portfolio as well as particularising some matters relating to the other parties business and intellectual property.  None of the instances of asserted confusion relate to the Trade Mark which is a plain word mark.

6.    The Opponent relies on the following trade marks (‘Opponent’s Marks’):[2]

[2] Orders were made on 30 July 2020 by Markovich J in the matter of PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd 2020 FCA 1078 for certain goods to be severed from these applications.  For the 2008 Mark non-use was determined for:

class 29: cheese, olives, preserved; prepared olives; processed olives; peppers (prepared); pickled peppers; food preparations with a vegetable base; food spreads consisting principally of vegetables for sandwiches; and class 30: sauces for rice; food preparations for use as sandwich spreads.

For the 2016 Marks non-use was determined for: class 29, desserts made from yoghurt, fruit flavoured yoghurts, low fat yoghurts, yoghurt desserts, and yoghurts containing pulped fruits; and class 30, creamed rice, rice puddings and rice tapioca.

Trade Mark No:       1751266

Words:  WICKED SISTER

Image description:  WICKED SISTER
Priority Date:            9 February 2016

Trade Mark No:       1751267

Words:  WICKED SISTER (Figurative)

Image description:  WICKED SISTER
Priority Date:            9 February 2016

Trade Mark No:       1240821

Words:  WICKED SISTER FINE FOODS (Figurative)

Image description:  WICKED SISTER
Priority Date:            29 May 2008

2016 Marks
Class 29: Desserts made from yoghurt; fruit flavoured yoghurts; low fat yoghurts; yoghurt desserts; dairy products and dairy-based foods; yoghurt; dairy-based desserts including desserts made from yoghurt (excluding frozen yoghurt); fruit flavoured yoghurts; low fat yoghurts; yoghurts containing pulped fruits; yoghurt preparations; desserts made wholly or principally of dairy products; panna cottas; creme caramels; custards; chilled desserts

Class 30: Creamed rice; rice puddings; rice tapioca; dessert sauces; dipping sauces; cheesecakes; bakery products; cakes; confectionery; frozen yoghurt; ice cream; frozen confections including ice cream desserts; all other desserts in this class including prepared desserts; chilled desserts; mousse and mousse style desserts; tiramisu; puddings, desserts

2008 Mark
Class 29: Cheese; olives, preserved; prepared olives; processed olives; peppers (prepared); pickled peppers; dairy desserts; food preparations with a vegetable base; food spreads consisting principally of vegetables for sandwiches; desserts made from yoghurt; fruit flavoured yoghurts; low fat yoghurts; yoghurt desserts; yoghurts containing pulped fruits

Class 30: Creamed rice; rice puddings; rice tapioca; sauces for rice; food preparations for use as sandwich spreads; cheesecakes

7.     Much like the Polly Affidavits the Polly Declaration seeks to characterise the business including the quantity of sales and intellectual property portfolio as well as particularising some matters relating to the other parties business and intellectual property.  Regulatory documents as well as copies of promotional material and social media are annexed.

8.     Written submissions were received from both parties.  Both parties attended the hearing electronically.

Onus and Standard of Proof

9.    The relevant standard of proof is the civil standard, or ‘on the balance of probabilities’.0F0F0F[3] 

10.   The Opponent bears the onus of proof in an Opposition Hearing.1F1F1F[4] 

11. The application will succeed if a nominated ground is established. The Opponent pursued the grounds of opposition ss 41, 42(b), 44, 58, 59, 60 and 62A. As will become apparent, the Opponent has successfully opposed the application under s 41. For the purpose of s 41 the relevant date is 28 June 2011. The Trade Mark was filed before the 15 April 2013 Raising the Bar Amendments to s 41.[5] The Trade Mark will therefore be assessed against the s 41 provision as it stood in 2011.

Application pursuant to r 21.19

[3] Pfizer Products Inc v Karam (2006) FCA 1663 per Gyles J at [6] to [26].

[4] Food Channel Network Pty Ltd v Television Food Network GP (2010) FCAFC 58 [32].

[5] The Intellectual Property Laws Amendment Act 2012 ‘Raising the Bar’ Act 2012.

1. By a letter to the Registrar dated 12 February 2020, the Opponent sought to adduce a further declaration of P Polly dated 5 February 2020 which annexed evidence alleging further instances of actual confusion.3F3F3F[6]  Both parties filed written submissions in relation to this application.4F4F4F[7]  Oral submissions were made by both parties in relation to the declaration at the commencement of the hearing.

   [6] Further Evidence, P Polly Declaration, dated 5 February 2020, Annexures A-C.

   [7] Applicants Submissions dated 21 February 2020, Opponents Submissions, dated 20 February 2020.

2. Regulation 21.19 provides:

   21.19 Registrar may use information available

   (1)If:

   (a)information that is available to the Registrar is relevant to proceedings before the Registrar; and

   (b)the Registrar has reason to believe that the information is not known to a party to the proceedings; and

   (c)the Registrar proposes to take the information into account in making a decision in the proceedings;

   before making the decision the Registrar must:

   (d)provide the information to the party; and

   (e)give the party a reasonable opportunity to make representations about the information.

   (2)For the purposes of paragraph (1)(e), the representations may be made in writing or at a hearing or by such other means as the Registrar reasonably allows.

   While instances of actual confusion are compelling, the persuasive impact of each individual instance in a series tends to incrementally diminish.  After several instances of genuine confusion, further incidents are the expectation and without special features are not out of the norm.  The evidence filed in accordance with the evidentiary timetable, and consistent with the Trade Mark Regulations 1995 (Commonwealth) (The ‘Regulations’), already contained several asserted instances of actual confusion.5F5F5F[8]   The duly filed evidence was of the same nature as the evidence which was sought to be adduced out of time, including copies of social media comments and emails from acquaintances of the Declarant.

   [8] Polly Declaration, Annexures Z and AA; Second Polly Declaration

3. Katzman J in the decision of In ‘n’ Out Burgers v Hashtag Burgers recently stated in relation to social media evidence:6F6F6F[9]

   Evidence of actual confusion can be very persuasive.  But it is always necessary to evaluate the quality of the evidence “by reference to its internal features”, together with the other evidence and the court’s own knowledge of human affairs... In the absence of evidence of context and without being able to identify the people who posted the remarks, it is difficult to put a great deal of weight on any of this evidence. None of the authors of the posts gave evidence. It is impossible to know what factors they took into account.

   I am mindful of the probative value that can be assigned to the type of evidence sought to be adduced given these stated limitations.

   [9] In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] FCA 193, [115].

4. Copies of affidavits from Federal Court proceedings between the parties are before me showing sworn evidence, the relevant date is 2019 some eight years after the filing date of the application.[10]   It is not clear to me whether the deponent of the affidavit was required to give oral evidence in the Federal Court proceedings, if so, it would have been probative to indicate this and include the portion of the transcript which related to that evidence.

   [10] Federal Court Rules 2011 (Commonwealth), r 2.32.

5. I find that it is not necessary to allow the further evidence which would serve only to extrapolate the pattern of evidence which has been duly filed.  The further incidents of asserted confusion would be merely expected in circumstances where the series is found to be genuine.  In the absence of compelling reasons to explain the delay for filing the further evidence, the further evidence was not considered and no further submissions in relation to the evidence were permitted.

   Application Pursuant to s 202

6. The Opponent requested in writing that material filed in relation to an adverse examination report was made available to them to assist with the preparation of their evidence. An application was not made pursuant to s 217A.7F7F7F[11]

   [11] Section 217A of the Trade Marks Act 1995 (Cth) states that prescribed documents relating to trade marks are to be made available for public inspection. The documents to be made available are prescribed pursuant to s 226A, and regulation 21.11A. Regulation 21.11A(2) specifically excludes a range of documents from being made available for public inspection.

7. Regulation 21.11A.2(d) prescribes that the Registrar may not provide:

   A document that solely contains evidence of use or proposed use of a trade mark.

   Excluded from this class are documents which are already in the public domain, including websites, advertisements, and promotional material.  Responses to examination reports are also excluded.8F8F8F[12]

   [12] >

   Neither party raised this regulation in the application for a Notice For Production therefore access was granted pursuant to s 202 and all the requested material was made available to the Opponent prior to the hearing and filing of submissions. 

   Grounds of Opposition

   Section 41 – Trade mark not distinguishing of applicant’s goods or services

8. As at 21 June 2011 Section 41 of the Act provided:

   41 Trade mark not distinguishing applicant’s goods or services

   (1)For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant.

   Note 1: For applicant and predecessor in title see section 6.
   Note 2: If a predecessor in title had authorised another person to use the trade mark, any authorised use of the trade mark by the other person is taken to be a use of the trade mark by the predecessor in title (see subsection 7(3) and section 8).

   (2)An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons.

   Note: For goods of a person and services of a person see section 6.

   (3)In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.

   (4)Then, if the Registrar is still unable to decide the question, the following provisions apply.

   (5)If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so distinguishing the designated goods or services:

   (a) the Registrar is to consider whether, because of the combined effect of the following:

   (i) the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;

   (ii) the use, or intended use, of the trade mark by the applicant;

   (iii) any other circumstances; the trade mark does or will distinguish the designated goods or services as being those of the applicant; and

   (b) if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons; and

   (c) if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons.

   Note 1: For goods of a person and services of a person see section 6.
   Note 2: Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

   (6) If the Registrar finds that the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:

   (a) if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;

   (b) in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.

   Note 1: Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:

   (a) the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or
   (b) the time of production of goods or of the rendering of services.

   Note 2: Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

9. Evidence of use is available and the legislative provisions related to use will be applicable. 9F9F9F[13]  To determine theTrade Mark’s inherent capability to distinguish I am required to look at the mark itself and then examine the proposed application to the Applicant’s goods.10F10F10F[14] 

   Inherent Capacity to Distinguish

   [13] s 41(5) and (6).

   [14] Cantarella Bros v Modena Trading [2014] HCA 48.

10. The s 41 test for the inherent adaptation of a trade mark to distinguish the designated goods from those of other traders was set out by Justice Kitto in F.H. Faulding & Son Ltd v Imperial Chemical Industries of Australia and New Zealand Ltd:11F11F12F[15]

    The question to be asked in order to test whether a word is adapted to distinguish one trader’s goods from the goods of all others is whether the word is one which other traders are likely in the ordinary course of their business and without any improper motive, to desire to use upon or in connection with their goods.

    [15] F.H. Faulding & Son Ltd v Imperial Chemical Industries of Australia and New Zealand Ltd [1965] HCA 72 [555].

11. In Clark Equipment Co v Registrar of Trade Marks, Kitto J also said:13F13F13F[16]

    That ultimate question must not be misunderstood. It is not whether the mark will be adapted to distinguish the registered owner’s goods if it be registered and other persons consequently find themselves precluded from using it. The question is whether the mark, considered quite apart from the effects of registration, is such that by its use the applicant is likely to attain his object of thereby distinguishing his goods from the goods of others.

    [16] Clark Equipment Co v Registrar of Trade Marks [1964] HCA 55; (1964) 111 CLR 511 at 513–14; [1964] HCA 55; [1965] ALR 344 at 345–6, per Kitto J.

12. I am not bound by the Examiner’s decision, however, I note that the Examiner’s first report stated: 14F14F14F[17]

    The word WICKED is a colloquial word for ‘excellent’ and indicates that your goods may be lauded as being excellent. The other meaning for WICKED, which is also often applied to foodstuffs is ‘sinful’ or 'decadent’. In either case, the word WICKED is describing the nature or quality of your goods, and there is a likelihood that other traders will want to use this term, or one similar to it, in relation to their similar goods. Other traders should be able to use WICKED in connection with goods or services similar to yours.

    [17] First Examination Report, dated 12 May 2017, addressed to K Newcomb.

1. For supermarket goods the relevant consumer can be thought of as most of the Australian population.  While I am satisfied that a majority of the population may not regularly use ‘wicked’ as a laudatory term, I am satisfied on the balance of probabilities that a number of people would use this term and a majority would understand it in this way.

2. The High Court stated in Cantarella Bros Pty Limited v Modena Trading Pty Limited:15F[18]

   After stating that "[w]ealthy traders are habitually eager to enclose part of the great common of the English language" (which echoed their Lordships in the Solio Case), Cozens-Hardy MR explained why no monopoly could be granted under s 9(5) for laudatory epithets used as adjectives. Words such as "good" or "best" are incapable of developing a secondary meaning as indicating only an applicant's goods. Accordingly "Perfection" was not registrable as a trade mark for soap as it was a word which should be open to use by both other traders and members of the public.

   [18] Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48 [36].

3. On this basis, I am satisfied that the ordinary signification of the Trade Mark is a colloquial word for ‘excellent’ and when applied to the goods there is an implication of decadence.  The Applicant’s goods are desserts, including toppings and sauces, I find those goods are likely to be decadent or high in calories.  I am satisfied the Trade Mark is a word that other traders would desire to use without improper motive to describe their own similar goods.  Therefore, I find the Trade Mark is purely laudatory does not have any inherent capacity to distinguish.

4. It will now be necessary to consider the Applicant’s evidence of use pursuant to s 41(6).

   Evidence of Use pursuant to s 41(6)

5. To overcome the s 41(6) ground of opposition evidence that the Trade Mark has been used before the priority date in respect of all of the Applicant’s goods must be before me. The evidence must show the Trade Mark had, through use, acquired distinctiveness as at the filing date of the application. The Applicant will not overcome the s 41(6) ground of opposition if I there has been insufficient use of the Trade Mark in respect of the Applicant’s goods or, a subset of the Applicant’s goods.

   The Applicant’s Evidence

6. The Applicant claims confidentiality for some information.[19]  The evidence is summarised below to the extent needed in order to provide reasons for my decision. The Applicant claims:

   [19] Valentine Declaration [5], [61] to [63], [65], [67] to [68], [71] to [78], and several Annexures.

   ·     In 1990 Mr Valentine devised the idea of selling a chocolate dipping sauce. This product sought to complement fresh strawberries

   ·     In mid-2002 Mr Valentine used the following mark which was hand-written on a piece of cardboard that was placed on a stand with the dipping sauce. This dipping sauce was sold on weekends at ‘flea markets’ in Carra, Gold Coast and Cannon Hill, Brisbane between 2002 and 2003.

   The lid of the dipping sauce displayed the following:

   ·In 2003 Mr Valentine commissioned a printed label as follows:

   ·By early 2003 Mr Valentine states he decided to commercialise the dipping sauce and took steps to register a business name, engaged marketing services and filed applications for trade marks.  This included the three trade marks shown below:

   Applicant’s Other Marks

Trade Mark Number 1042646 Registered Trade Mark Number 949862 Removed for non-use Trade Mark Number 2071621 Subject to examination

·Mr Valentine states:

Since late 2003 and to this day, the Wicked business has continuously sold Wicked-branded products to Australian retailers for sale to consumers. Coles has been the largest purchaser of Wicked-branded products. Many other Australian retailers have bought Wicked-branded products from the Wicked-Business, including IGA, Metcash, Bilo (later renamed Coles), Fruitlink, Foodworks, Drakes Food Markets, Fresh selections and other independent retailers. Most of these companies have stocked Wicked-branded products since the mid to late 2000’s.

·From 2014 the Applicant packaged its dipping sauce (chocolate, white chocolate and caramel) with new packaging:

·Sales figures are disclosed for a number of years prior to the relevant date and they are reasonably substantial. The Applicant states that 25-30% of sales are attributable to the  dipping sauces. Other ‘non-wicked products’ are also included in these totals with fresh strawberries also a small portion.

·Sales summary reports have been provided for a number of years which show sales of the dipping sauces to retailers.

1. Emails containing the Trade Mark and addressed to major supplier of the goods are before me.17F17F18F[20] I note that plain text is ordinarily used in emails and use involving suppliers and not consumers is not necessarily relevant. In much of the evidence the Trade Mark in this application cannot be discerned at all. 18F18F19F[21] The limited use in relation to communicating with distributors is not sufficient on these facts to show use of the Trade Mark. Another stylised and separately registered version of the a trade mark is used on packaging and appears repeatedly in the evidence.19F19F20F[22]  The packaging also shows a product image of the contents and the individual product descriptions, which are both significantly more prominent than the stylised version of the Trade Mark20F or any other feature.20F20F21F[23] For example:[24]

   [20] Valentine Declaration, [31] – [32].

   [21] Finch Affidavit, Annexure pp. 46, Wicked Sister

   [22] Trade Mark Application 1042646, `Wicked (Figurative) this mark is subject to current Federal Court action

   [23] Valentine Declaration, pp 11.

   [24] Valentine Declaration, Annexure N.

2. The evidence discloses that the product packaging incorporates a stylised version of the Trade Mark with an arrow forming part of the letter D in ‘Wicked’, as well as a trade mark incorporating the word ‘Wicked’ where the letter ‘w’ is formed with three arrows (as depicted in trade mark number 2071621) together with an illustration of the goods, as well as further text describing the nature of the goods. [25]   

   [25] Valentine Declaration [10]-[23].

3. There is no evidence before me that the plain word Trade Mark was used on, or in relation to, the Applicant’s goods prior to 28 June 2011 (‘Relevant date’). 

4. Counsel for the Applicant submitted the use of the aural representation ‘Wicked’ on radio advertisements during 2004 was use of the Trade Mark pursuant to s 7.25F24F23F[26] These commercials screened many years before the priority date and are insufficient to persuade me that there was independent awareness of the Trade Mark sufficient to overcome a section 41(6) ground of opposition at the Relevant date.

   [26] Valentine Declaration, [76]-[79].

5. Subsection 41(6) allows for a trade mark to be registered where it is not inherently sufficiently adapted to distinguish, but where evidence of use prior to the filing date shows the capacity to distinguish the designated goods.  The use must be use as a trade mark pursuant to s 7, that is, use capable of distinguishing the Applicant’s goods and use as a badge of origin for those goods.  The evidence before me does not meet those requirements. 

6. The Applicant has not established that the plain word Trade Mark, WICKED, is capable of distinguishing the Applicant’s goods. Therefore, I find the ground of opposition pursuant to section 41 has been established.

   Decision

   37.   The Opponent has established a ground of opposition.  Pursuant to section 55(1), Trade Mark number 1835886 will not proceed to registration. 

   38. The parties may appeal this decision to the Federal Court in accordance with s 56 of the Act. If the Registrar has been served with notice of appeal, I direct that the Trade Mark shall not be removed from the Register until the appeal has been decided or discontinued.

   Costs

   39.   Costs ordinarily follow the event for an Opposition Hearing.  No submissions have been received to displace the proposition.

   40. I therefore direct costs against the Applicant pursuant to s 221 of the Act in the relevant amounts prescribed by Schedule 8 of the Trade Mark Regulations 1995 (Cth).

   Kate Doherty
   Hearing Officer
   Oppositions and Hearings
   Trade Marks and Designs
   7 August 2020