Philip Wait v Pinpoint Limited

[2012] ATMO 104

TRADE MARKS ACT 1995

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

Re:Opposition by Philip Wait to application under section 92 of the Act by Pinpoint Limited to remove trade mark number 976247 (9, 45) - PINPOINT - in the name of Philip Wait

Delegate:	Claudia Murray
Representation:	Opponent: Dr Nigel Parker, Partner of Houlihan2, Patent & Trade Mark Attorneys Applicant: Ms Roseanne Mannion and Mr Ken Hamilton, Legal Practitioners, Spruson & Ferguson
Decision:	2012 ATMO 104 Section 92(4)(a) and (b) opposition – 92(4)(b) not rebutted – trade mark to be removed from the Register – costs awarded against opponent.

Background

1. Trade mark number 976247 is registered for the plain word trade mark:

PINPOINT

1. The registration is in Classes 9 and 45 of the International (Nice) Classification of Goods and Services, for:

   Class 9: Electronic communications systems for tracking people or assets including emergency call systems and alarms

   Class 45: Surveillance and security services for tracking people or assets including emergency call services that relay alarm calls and position information to a central monitoring facility

2. The trade mark was registered from 30 October 2003 and the trade mark owner is Philip Wait.

   Application for removal

3. Pinpoint Limited (‘the removal applicant’) made application under section 92 of the Trade Marks Act 1995 (‘the Act’) for removal of the trade mark from the Register, on 23 July 2010. The removal application sought removal for all of the goods and services covered by the subject registration and cited grounds for removal under paragraphs 92(4)(a) and (b)of the Act. These provide:

   (4)     An application under subsection (1) or (3) (non‑use application) may be made on either or both of the following grounds, and on no other grounds:

   (a)     that, on the day on which the application for the registration of the trade mark was filed, the applicant for registration had no intention in good faith:

   (i)        to use the trade mark in Australia; or

   (ii)       to authorise the use of the trade mark in Australia; or

   (iii)      to assign the trade mark to a body corporate for use by the body corporate in Australia;

   in relation to the goods and/or services to which the non‑use application relates and that the registered owner:

   (iv)      has not used the trade mark in Australia; or

   (v)       has not used the trade mark in good faith in Australia;

   in relation to those goods and/or services at any time before the period of one month ending on the day on which the non‑use application is filed;

   (b)     that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non‑use application is filed, and, at no time during that period, the person who was then the registered owner:

   (i)        used the trade mark in Australia; or

   (ii)       used the trade mark in good faith in Australia;

   in relation to the goods and/or services to which the application relates.

   Note 1: For file and month see section 6.

   Note 2: If non‑use of a trade mark has been established in a particular place or export market, then instead of the trade mark being removed from the Register, conditions or limitations may be imposed under section 102 on the registration of the trade mark so that its registration does not extend to that place or export market.

4. For the purposes of paragraph 92(4)(b), the relevant three-year period ended on 23 June 2010.

   Notice of opposition

5. Notice of opposition to the removal application was filed by the trade mark owner, Philip Wait (‘Mr Wait’ or ‘the opponent’) on 19 November 2010.

   Evidence

6. The evidence in relation to this removal opposition comprises:

   Evidence in Support

   ØStatutory declaration of Philip John Wait, with Exhibits PJW-1 and PJW-2, dated 13 April 2011.

   ØStatutory declaration of Peter Rhett Latchford, dated 13 April 2011.

   Evidence in Answer

   ØStatutory declaration of Roseanne Mannion, with Exhibits RSM-1 and RSM-2, dated 18 July 2011.

   Evidence in Reply

   ØStatutory declaration of Philip John Wait, dated 8 October 2011.

7. Mr Wait’s first declaration explains that he has been involved in the medical alarm industry in Australia for almost thirty years. He declares that he is the owner of an equipment manufacturing company called VC International Pty Ltd (‘VCI’), which manufactures medical alarm monitoring equipment for medical alarm service providers. Mr Wait’s declaration chronicles his attempts to bring to fruition an idea he has held for many years for sourcing and commercializing in Australia a combined personal medical alarm and locating monitor. He intended to market this product, when developed, under the PINPOINT trade mark. He explains:

   Traditionally, medical alarm monitoring consists of a personal pendant radio transmitter and an automatic telephone dialler connected to a clients fixed telephone service. In an emergency the client presses the pendant transmitter to activate the telephone dialler. The range of the pendant is about 100 metres.

   With this arrangement a person is only protected within about 100 metres or their fixed phone service. This is a significant disadvantage in a time when aged and infirm people are increasingly mobile.

   It has been my opinion for many years that the solution is to provide a medical alarm through the mobile phone network, but as the person requiring assistance would be possibly be away from their home, it is also necessary to know their location. This type of technology would also be suitable for lone workers to satisfy occupational health and safety requirements, for disabled persons, and for "wandering patients" from residential aged care facilities.

   By 2003 with the development of the Global Positioning System (GPS) providing reliable location information I saw the opportunity to market a new type of medical alarm which provided location information.

   To commercialise this concept I applied for the registration of the Trade Mark on 30 October 2003 and which was entered on the Register 2 September 2004.

   I also registered the Australian company Pinpoint Group Pty Ltd, ACN 107133540, on 21st November 2003 with myself and a business partner, namely Julia Cantello, as joint Directors. That company is still registered. A copy of an extract from an ASIC name search of that company is annexed and marked "PJW-l".

   I also registered the domain name on 20th November 2003, and that domain name remains registered.

   I then undertook an investigation into the feasibility of using mobile phone coupled with GPS technology for the medical alarm market and discussed the concept using the "PINPOINT" brand to existing clients and several government departments. In 2006, I visited major electronic trade shows in Hong Kong and Taiwan in order to investigate the development status and availability of the technology. At that time, mobile phone technology coupled with a GPS function was in the early stages of development and, although some manufacturers were promoting the technology, it was my opinion that the technology was then both immature and expensive.

   Over the last several years, mobile phone and GPS technology has continued to develop and combinations of mobile phones with a GPS feature are starting to appear in the medical alarm market, although it is my opinion that the technology is still immature and expensive and sales are very low or non-existent.

   It is still my intention to develop a mobile phone/GPS combination under the PINPOINT name in the VCI product range, but for the product to be successful in the personal alarm monitoring market the equipment price-point needs to be significantly lower than that currently available.

   However it is my belief that the correct price point for such a product will be reached in the near future, and any delay in introducing the product to Australia has been solely due to the immature nature of the technology and the cost.[1]

   [1] Statutory declaration of Philip John Wait, with Exhibits PJW-1 and PJW-2, dated 13 April 2011 (‘First Wait Declaration’), paras 6-16.

8. Mr Wait goes on to describe regular dealings with Peter Latchford, the General Manager of the Safety Link Personal Response Service (‘Safety Link’), a business unit of Ballarat Health Services and a major customer of VCI. These dealings are corroborated by the declaration by Peter Rhett Latchford, also in evidence.[2] Mr Latchford was very interested in procuring for his business, at an acceptable price, a medical alarm that provided location information, such as that proposed to be marketed by Mr Wait. The two men met up in Hong Kong in October 2007, in order to attend an electronic trade show and investigate the progress of the technology that might be used for Mr Wait’s proposed product. In their opinion, the technology they observed being promoted at the trade show was still ‘both immature and expensive’.[3] The two continued intermittent phone discussions about the subject until Mr Latchford left his position with Safety Link in March 2010.

   [2] Statutory declaration of Peter Rhett Latchford, dated 13 April 2011 (‘Latchford declaration’).

   [3] Latchford Declaration, paras 8-10, First Wait Declaration, paras 21-22.

9. Mr Wait’s declaration also describes discussions about the prospective product with Mr Richard Smith, an officer responsible for procurement in the Sydney offices of the Department of Veterans Affairs. Mr Wait describes the Department as ‘the largest single user of medical alarms in Australia’. Discussions with Mr Smith apparently continued even after his retirement in 2006, until his death around 2009.

10. Finally, Mr Wait describes his decision, in late 2009, that as he now felt that the technology was maturing and becoming more affordable, he should commission the design of a ‘PINPOINT logo’. The two versions of the logo designed by Wellcom Group Pty Ltd, Port Melbourne for Mr Wait are shown below:

    [4]

    [4] First Wait Declaration, Exhibit PJW-2.

11. The evidence in answer is brief. It comprises a declaration by Roseanne Mannion, the removal applicant’s legal representative, with two exhibits. These exhibits are described by Ms Mannion as being ‘a copy of a product sheet with a copyright date of 2005 for a GPS personal alarm combined with a GSM mobile phone’, and ‘a copy of some patent abstracts that describe personal alarm inventions similar to that referred to [in the product sheet]’.[5]

    [5] Statutory declaration of Roseanne Mannion, with Exhibits RSM-1 and RSM-2, dated 18 July 2011.

12. Mr Wait’s second declaration in response attests that:

    The Mannion Declaration exhibits a sheet apparently showing that in 2005 a United Kingdom business called Direct Security Trading was offering, in the United Kingdom, a GPS personal Alarm system apparently having the basic features I have described as being the features I sought for a product to be marked with my PINPOINT trade mark.

    Until I saw that exhibit I was not aware of the Direct Security Trading product, and I do not know whether it was available in Australia or whether it was suitable for Australia or whether it achieved the price point that I believed was essential, all being criteria described in my earlier Declaration.

    I was aware of a product that was in Australia in the early part of the 2000 decade identified as a Benefon mobile phone device which included GPS technology and an emergency call button.

    It was my opinion that the Benefon product did not meet the criteria I describe in my earlier Declaration as the product was too large, too heavy, too complicated, the battery life was too short and it was too expensive for the Australian market for personal alarm systems.

    In fact the Benefon product was never successful in the Australian market, and as far as I was aware the product and the business just disappeared…

    In my earlier Declaration I state that the technology was too immature and too expensive for the market that I believed existed then and the RSM-1 exhibit to the Mannion Declaration does not contradict that assertion.

    The Mannion Declaration also exhibits (RSM-2) a number of patent abstracts relating to various patent applications describing inventions in the general area of the technology I have described, and published at various times before and since I lodged my application for a trade mark.

    I am unable to see the relevance of the patent abstracts exhibited with the Mannion Declaration, as I am not asserting that the technology was new or was not able to operate satisfactorily to meet a need. It was then, and has been since, my concern that the technology available was too expensive for the market I sought to satisfy with a PINPOINT product. In addition, the technology had not been developed to provide a simple PINPOINT product for that market.

    It is my opinion that the technology, which has continued to develop, may now provide components, modules or products that enable the market I describe in Australia to be met.

    It continues to be my intention to use the PINPOINT trade mark in respect of the goods and services referred to in that registration and accordingly I request that the trade mark be not removed from the register.[6]

    [6] Statutory declaration of Philip John Wait, dated 8 October 2011, paras 2-12.

    Hearing

13. The removal applicant requested a hearing at the completion of the evidence stages, and this was held in Canberra before me, as delegate of the Registrar, on 7 August 2012. Dr Nigel Parker, Partner of Houlihan2, Patent & Trade Mark Attorneys, Melbourne, represented the opponent. The removal applicant was represented by Ms Roseanne Mannion and Mr Ken Hamilton, Legal Practitioners, of Spruson & Ferguson, Sydney. The parties appeared by telephone.

    Discussion

    Burden on opponent to establish use of trade mark or otherwise make its case

15.  The provisions of section 100 place the burden squarely upon an opponent to rebut the removal applicant’s allegations made under paragraphs 92(4)(a) and (b). Section 101 provides for the Registrar’s delegate, should they find they have been convinced by the opponent’s evidence that circumstances exist making this reasonable, to decide not to remove the trade mark from the Register, even though the grounds on which the removal application was made have been established.

1. At the hearing, Ms Mannion sought to press both grounds of removal raised in the removal application. She cited Shanahan’s Australian Law of Trade Marks and Passing Off as authority for the argument that, in any event, after five years (or, in this case, seven years) have passed, the grounds set out in the two paragraphs effectively ‘merge’. Shanahan says:

   Section 92(4)(a) and (b) provide distinct and alternative grounds for removal. Under para (a) it is necessary to establish: first, that the trade mark was registered without the necessary intention in good faith that it should be used; and secondly, that there had in fact been no use, or no use in good faith, earlier than one month before the application for removal. Under para (b) it is necessary to establish only that there had been no use, or no use in good faith, in the three-year period extending up to one month before the application for removal, subject to s93(2) which provides that five years must have passed since the application for the registered trade mark was filed.

   Paragraph (a) thus merges with para (b) once the trade mark has been registered for five years, though it should be noted that the defence of “circumstances that were an obstacle to the use of the trade mark” which applies to para (b) is not available under para (a).[7]

   [7] Shanahan’s Australian Law of Trade Marks and Passing Off (4^th Edition, 2008), [70.510], p 500.

2. Ms Mannion argued that the opponent had not made his case in terms of being able to show either use of his trade mark during the relevant period, or that there were valid obstacles to that use, or indeed that there existed ‘any reason whatsoever’ for the Registrar to otherwise exercise her discretion favourably to allow the trade mark to remain on the Register.

3. Dr Parker argued in response for the opponent that:

   The Opponent’s Evidence-in-Support establishes that Philip Wait was fully intending to use the PINPOINT Trade Mark in association with the goods for which the Trade Mark is registered and (during the relevant period) had discussed the Trade Mark with a potential business partner. The idea behind the products and services that are to bear the Trade Mark is based on technology that, at the time of filing, and throughout the relevant period, was too expensive to implement in a financially responsible manner…

   In respect of subsection 92(4)(a), the Opponent will refer to its Evidence-in-Support. Exhibit PJW-1 details the Australian Company “Pinpoint Group Pty Ltd” that was registered in the Opponent’s name on 21 November 2003. The domain was registered on 20 November 2003. Since the Trade Mark was applied for on 30 October 2003, the Opponent has shown a genuine intention to use the Trade Mark at the time of filing the initial Trade Mark Application.

   Concerning subsection 92(4)(b), the Evidence-in-Support establishes a genuine intent to use the Trade Mark throughout the relevant period. For example, the Latchford Declaration clearly states that a visit to Hong Kong in October 2007 was for the purpose of “investigating the latest technology then available for the PINPOINT medical alarm.” Furthermore, preparation of a logo to accompany the word “PINPOINT” (exhibit PJW-2) occurred in 2009. The logo is currently in use on the Opponent’s website.

   While the Opponent has been unable to show actual evidence of sales of goods/services bearing the Trade Mark, there is clear evidence of an intention to use the Trade Mark, both through business colleagues and the preparation of a logo to accompany the word “PINPOINT”.

   Under subsection 100(1) of the Act, the Opponent bears the onus of establishing use of the trade mark in good faith on the goods within the relevant period. The removal application was filed on 23 July 2010, and the relevant period is the three years prior to 23 June 2010. In the event of a failure to establish Trade Mark use in that period, the Opponent may highlight circumstances that would satisfy the Registrar that there was an obstacle to use of the trade mark (subsection 100(3)(c)) or that there are circumstances which enable the Registrar to exercise the discretion contained in subsection 101(3) of the Act and allow the Trade Mark to remain on the Register despite the allegation of non-use not having been rebutted.

   An obstacle of the kind referred to in subsection 100(3)(c) to the use of the Trade Mark must be due to circumstances beyond the control of the Trade Mark owner. The relevant obstacle should be considered within a business sense and therefore the lack of an advanced and cost-effective product in Australia is a suitable obstacle. The Opponent’s Evidence-in-Support and –Reply establishes that the technological field had not advanced to a sufficient level, during the relevant period, coupled with the cost for prospective customers being prohibitive. Cost is beyond the control of the Opponent and an obstacle in a business sense.

   The inability to market goods and services bearing the Trade Mark did not stem from a conscious decision by the owner, rather it was as a direct result of the lack of an advanced and cost effective product being available.

   The Opponent requests that the Registrar exercises his discretion under subsection 101(3) to allow the Trade Mark to remain on the Register.

   Intention to use in good faith

19. The majority of removal applications are pursued under paragraph 92(4)(b) of the Act, which creates a relevant non-use period of 3 years ending a month before the non-use application is lodged. By virtue of subsection 93(2), such an action may not be brought before a period of 5 years has passed from the filing date in respect of the application for the registration of the trade mark. The emphasis under that provision (in opposition) is squarely upon determining the true extent and nature of a removal opponent’s actual use of what, by that time, should be a well-established trade mark registration. The emphasis in paragraph 92(4)(a) is quite different, and its unpopularity with removal applicants is testament to their very limited prospects for success under it, should the application be opposed. A removal applicant relying solely upon paragraph 92(4)(a) is forced to gamble upon the unlikely possibility that a prospective opponent will be unable to rebut an allegation that it never really intended to use its trade mark, at the very point at which it had gone to the trouble of filing an application for its registration.

20. I find Mr Wait’s evidence to be persuasive on the matter of his having had a genuine intention to use his trade mark at the time he filed his application for registration on 30 October 2003. He has also convinced me that this intention has persisted to a limited degree over the nine years that have now passed since that date. However, while this is sufficient for him to avoid the removal applicant’s success under the quite rigid combination of requirements set out under paragraph 92(4)(a), mere intention to use, without more, is not sufficient for an opponent to successfully rebut a ground for removal in terms of paragraph 92(4)(b).

Use of the trade mark or circumstances that were an obstacle to use

1. Dr Parker recognized in his submissions (quoted above) that the opponent has been unable to show actual use of the trade mark in relation to either the goods or the services covered by his trade mark, as required under the provisions of paragraphs 100(3)(a) and (b). Further, he chose not to argue that the examples given by Mr Wait add up to a convincing demonstration of committed preparations for use in the immediate future, such as I might also be able to take into account under either of those provisions. Ms Mannion drew my attention to the words of Drummond J in Woolly Bull Enterprises Pty Ltd v Reynolds, (the Woolly Bull case) where, approving the view of Gummow J in Buying Systems (Australia) Pty Ltd v Studio SRL,[8] he observed:

   [8] (1995) 30 IPR 517.

   Though it is not necessary, for there to be such a use of a mark, that there be an actual trade in the sense of the offering for sale and the sale of goods bearing the mark, the owner will not use its mark unless it has so acted to show that it has gone beyond investigating whether to use the mark and beyond planning to use the mark and has got to the stage where it can be seen objectively to have committed itself to using the mark, ie, to carrying its intention to use the mark into effect.[9]

   [9] [2001] FCS 261; (2001) 51 IPR 149, at 161.

22.  The very long passage of time between Mr Wait’s actions militates against any possibility that I might find those actions persuasive in terms of committed preparations for imminent use. Clearly, he had expectations that he would soon be able to commence business under the trade mark when he set up his Australian company Pinpoint Group Pty Ltd, and registered the domain name in 2003. However, he apparently took no further positive steps towards developing his business idea until he visited ‘various major electronic trade shows’ in Hong Kong and Taiwan in 2006 and 2007 (when he met with Mr Latchford at the Hong Kong Trade Show). Mr Wait’s plans then went on hold again until 2009, when, becoming ‘more confident that the technology was maturing and becoming affordable’, he commissioned the ‘PINPOINT GROUP’ logo pictured above. However, by April 2011, when he made his first declaration, there had been no further progress at all.

23.   In preference to arguing the opponent’s case in terms of use of the trade mark, Dr Parker has asked me to find that there were obstacles in the way of Mr Wait’s ability to bring his business plan to fruition that conform with the exception set out in paragraph 100(3)(c):

[T]he opponent has established that the trade mark was not used by its registered owner in relation to those goods and/or services during that period because of circumstances (whether affecting traders generally or only the registered owner of the trade mark) that were an obstacle to the use of the trade mark during that period.

1. Both parties have referred me to the comments of Drummond J in the Woolly Bull case, in support of their opposing positions on the question of whether the opponent has faced genuine obstacles to his use of the trade mark, within the relevant period. Drummond J observed:

   In my opinion, circumstances within s 100(3)(c) will only exist when events arise that are capable of disrupting trade in the area of commercial activity in which goods bearing the registered owner's mark are traded. For the statutory excuse to be made out, those circumstances must cause (in a practical business sense) non-use of the particular mark by the owner, whether or not they have an impact on any persons other than the owner of that mark who are also involved in that same area of commercial activity. There must be a causal link shown between the relevant circumstances and the mark's non-use. This requirement arises from the fact that s 100(3)(c) creates an excuse only where the mark has not been used by the registered owner "because of" circumstances etc. It will not assist the opponent to removal to show the existence of an impediment to use of the kind referred to in s 100(3)(c) if he does not also establish that, but for that impediment, he would have used the mark.

   There is also a question whether circumstances that constitute an obstacle to use of the mark must exist throughout the whole of the three year period if they are to be sufficient for the purposes of s 100(3)(c) or whether it is enough that they exist during a part (no doubt, during more than a de minimis part), of that period. The latter view is, in my opinion, the better reading. For the reasons given, a single bona fide use of the mark during the relevant three year period is, by force of s 100(3)(a), an answer to an application for removal for non-use. An obstacle of the kind referred to in s 100(3)(c) to the use of the mark that operates only for part (ie, more than a de minimis part) of the three year period provides the same justification for non-cancellation as does a single user of the mark in the relevant three year period, but only provided the opponent to removal establishes that the mark would have been used during that part of the three year period but for the existence then of the obstacle. A use of the mark which it is shown would have occurred during part of the three year period, but for the existence of the obstacle during that part of the period, has, in my opinion, the same claim to be recognised as excusing non-use that an actual use during that particular part of the period has. [10]

   [10] Woolly Bull Enterprises Pty Ltd v Reynolds, op cit. at 163-4.

2. It will be remembered that, although the opponent’s business idea for the PINPOINT trade mark was actually conceived several years earlier, the relevant period for the purposes of the removal application covers the three years prior to 23 June 2010. Mr Wait has attested that it was in October 2007, early in that three year period, when he and Mr Latchford, upon visiting the electronic trade show in Hong Kong, decided that the technology required for the proposed device was still too immature and expensive for his purposes. Arguably, although notably lacking in detail, this circumstance may have fitted Drummond J’s description of a practical business circumstance preventing use of the trade mark. However, that is not the end of the matter, because Mr Wait’s first declaration goes on to explain that, by late 2009, he was so confident that he was soon going to be able to use his trade mark that he commissioned the design of a ‘PINPOINT logo’. Yet, even after taking this action, no further progress was made over the following two years.

3. By his own explanation, Mr Wait has relegated the circumstance of his finding the technology still too immature and expensive in 2007 to the level of an obstacle that only existed for a de minimis part of the relevant period, to borrow Drummond J’s words. The fact that he later commissioned a logo for use with the trade mark yet still took no further action suggests to me that, at any and all points in the history of his business idea, (however often discussed with his professional contacts), the relative development of the technology and the possibility of its proving expensive and therefore unpopular with the Australian market were not the impediments, but for which he would have used the trade mark. Mr Wait has, as discussed by Drummond J above, pointed to the existence of these circumstances, without providing anything approaching the detailed business and financial information that might possibly have established the requisite ‘causal link’ between those circumstances and his inability to proceed at all at that point, or indeed during the next four years.

4. I find that the opponent has not rebutted the ground of removal under paragraph 92(4)(b).

   Discretion not to remove trade mark from the Register

5. There remains a consideration of the discretion available to the Registrar not to remove a trade mark from the Register, even if a ground of removal has been established. Dr Parker asked that I exercise my discretion under subsection 101(3), although he did not make persuasive submissions in support of this request, and there is nothing in the opponent’s evidence to support it. In contrast and as may have been expected, the removal applicant has argued emphatically against such a possibility.

6. The discretion under section 101 is broad and exceptional circumstances are not required before it may be invoked.[11] However, I must be ‘positively satisfied’ that it is reasonable not to remove the trade mark, and the opponent bears the onus of proof.[12] There is nothing before me here to suggest any compelling reasons to leave Mr Wait’s trade mark on the Register. He has had nine years to bring to fruition his idea for use of the PINPOINT trade mark and even now there seems little, if any, prospect of this ever occurring. There is no likelihood of the public being confused by the so-far-unused trade mark being removed from the Register by a removal applicant which, by its very name, has indicated its own interest in that same trade mark. This is precisely the kind of situation that the non-use removal provisions of the Act were designed to facilitate. I decline to exercise my discretion not to remove the trade mark from the Register.

   [11] Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8 (21 February 2012), at para 69.

   [12] Ibid. at para 44.

   Decision

7. The opponent has not discharged the onus upon him to rebut the removal applicant’s allegation of non-use. The opposition is therefore not established. I direct that registration number 976247 be removed from the Register one month from the date of this decision. If the Registrar has been served with a notice of appeal before then, I direct that removal shall not occur until the appeal has been discontinued or, in the event of a decision from the Court, that the registration be dealt with as the Court sees fit.

   Costs

31.  The removal applicant is the successful party and is entitled to its costs. Accordingly, I award costs against the opponent, as per Schedules 8 and 9 of the Trade Marks Regulations 1995.

Claudia Murray
Hearing Officer
Trade Marks Hearings
8 November 2012