Planet Farms Holding S.p.A. v Craig Bryson and Karen Bryson

[2023] ATMO 87

TRADE MARKS ACT 1995

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

Re:Opposition by Planet Farms Holding S.p.A. to registration of trade mark application 2181444 (21, 25, 31, 35) – THE PLANT FARM EST. 2021 (Figurative) – in the name of Craig Bryson and Karen Bryson

Delegate:

Nicholas Smith

Representation:

Opponent: Spruson & Ferguson

Applicant: Sparke Helmore Lawyers

Decision:

2023 ATMO 87

Trade Marks Act 1995 (Cth) - Section 52 opposition: ss 44 and 58A considered – neither established – trade mark to proceed to registration

Background

1. This decision concerns an opposition brought by Planet Farms Holding S.p.A. (‘Opponent’) to the registration of the trade mark which is the subject of the application detailed below in the name of Craig Bryson and Karen Bryson (‘Applicant’): 

Application Number:

2181444

Filing Date[1]:

25 May 2021

Goods and Services:

Class 21: Plant containers in the nature of pots; Plant holders; Plant pots; Plant pot holders; Containers for plants (for household use); Bases for plant pots; Indoor terrariums (plant cultivation); Irrigating apparatus for plants (other than machines or automatic); Mist applicators for plants; Stands for plants; Tubs made of plastics for containing plants; Tubs made of wood for containing plants; Pot plant support sticks; Domestic gloves; Gardening gloves; Garden gnomes of earthenware; Garden gnomes of glass; Garden gnomes of porcelain; Holders for flowers and plants (flower arranging); Plant-pot covers, not of paper (flower-pot covers, not of paper); Containers for flowers; Flower pots; Flower vases; Flower-pot holders; Hanging flower pots; Tubs made of plastics for containing flowers; Tubs made of wood for containing flowers; Bird baths; Bird feeders; Hand operated hand sprayers, for watering plants; Syringes for watering flowers and plants; Watering can roses; Watering cans; Bowls for plants; Bowls (basins); Decorative objects (ornaments) made of earthenware; Decorative objects (ornaments) made of porcelain; Decorative objects (ornaments) made of glass; Works of art, of porcelain, ceramic, earthenware, terra-cotta or glass
Class 25: Apparel (clothing, footwear, headgear); Aprons (clothing); Gloves (clothing); Articles of water-resistant clothing; Casual clothing; Occupational clothing (other than for protection against accident or injury); Hats; Sun hats; Fabric belts (for wear); Overalls; Working shoes (other than for the prevention of accident or injury)
Class 31: Plants; Foliage plants; Fresh plants; House plants; Leguminous plants; Vine plants; Live plants; Natural plants; Nursery plants; Potted plants; Climbing plants; Plant bulbs; Plant cuttings; Tubers for plant propagation; Fresh garden herbs; Flowering plants; Cut flowers; Dried flowers; Fresh flowers; Live flowers; Fresh flower arrangements; Bird food; Arrangements of dried flowers for decorative purposes; Dried plants for decoration; Plants, dried, for decoration; Flower seeds; Plant seeds; Grass seeds; Seeds for planting
Class 35: Retail services; Retailing of goods (by any means); Retail sale of natural and synthetic flowers and flower arrangements; Wholesaling of goods (by any means); Presentation of goods on communication media, for retail purposes; Promotional marketing

(‘Applicant’s Goods and Services’)

Trade Mark:

(‘Trade Mark’)

[1] Also known in this decision as the ‘relevant date’.

2.  Unless otherwise indicated, any references to sections or regulations in this decision are references to sections or regulations of the Trade Marks Act 1995 (Cth) (‘Act’) or the Trade Marks Regulations 1995 (Cth) (‘Regulations’), respectively.

3.  Following the advertisement of the application’s acceptance for possible registration the Opponent filed a Notice of Intention to Oppose the registration followed by a Statement of Grounds and Particulars on 21 January 2022 (‘SGP’).  The SGP raised grounds of opposition under ss 44 and 58A.  The Applicant filed a Notice of Intention to Defend on 19 April 2022. 

4.  Neither Party filed any evidence or submissions in this matter.  Once the time allowed for filing evidence had ended the parties were given an opportunity to request a hearing in this matter or a decision without hearing.  The Opponent requested that the matter proceed to a decision without hearing and paid the appropriate fee.  As a result, the matter has been allocated to a delegate of the Registrar for a decision based on the written record.

1. I am a delegate of the Registrar of Trade Marks and I am to decide the opposition as required by s 55 which provides that, unless the proceedings are discontinued, dismissed, or have lapsed under s 54A 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. 

   In doing so I take account of       the written record comprised of the materials mentioned in the preceding paragraphs.

   The Opponent

   6.  The Opponent has not filed any evidence and as such I have no information about it other than what is set out on the Register.  The Opponent is the owner of the trade mark listed below (‘Opponent’s Trade Mark’).  The goods and services for which the Opponent’s Trade Mark is registered are collectively referred to as the ‘Opponent’s Goods and Services’. 

Number	Trade Mark	Priority Date	Goods or Services
2100515	5 Mar 2020	Class 5: Pharmaceutical drugs; pharmaceuticals and natural remedies; chemical preparations for medical purposes; pharmaceuticals; pharmaceutical preparations; homeopathic pharmaceuticals; antibacterial pharmaceuticals; chemico-pharmaceutical preparations; ointments for pharmaceutical purposes; medicinal herbs; medicated herbal preparations; plant and herb extracts for medicinal use; pharmaceutical preparations for human use; medical preparations; aloe vera preparations for pharmaceutical purposes; crude drugs; drugs for medical purposes; smoking herbs for medical purposes; medicated skin creams; medicinal ointments; pharmaceutical implants; sanitisers. Class 11: Hydroponic growing system; ventilation installations and parts and fittings therefor; air conditioning installations and parts and fittings therefor; refrigerating and freezing installations and parts and fittings therefor; apparatus for lighting, heating, steam generating, refrigerating, ventilating and water supply purposes; air conditioning fans; devices and apparatus for disinfection, decontamination and sterilisation; chambers (clean -) [sanitary installations]; sterilisers; air purifying apparatus; clean air booths (air purification apparatus for -); water sterilizers; air sterilising apparatus; LED luminaires; automated bio-decontamination devices with remote control; sprinkler installations [automatic] for horticultural purposes. Class 31: Hydroponic seeds; seeds, bulbs and seedlings for plant breeding; natural seeds; natural plants; crop seeds; none of the aforesaid goods belonging to the botanical genus brassica, campanula, calibrachoa, medicago, lotus, ornithopus, onobrychis, trifolium; raw and unprocessed grains; none of the aforesaid goods belonging to the botanical genus secale, triticale, triticum; fresh vegetables; living salad; salad crops; salad vegetables [fresh]; fresh fruits; garden herbs, fresh; garden herbs, fresh; vegetable seeds; dried plants. Class 35: Business management; business administration; office functions; commercial consultancy and information in relation to management of horticulture and agriculture; providing of consultancy and information in relation to business management of horticulture and agriculture services. Class 40: Air and water conditioning and purification; treatment of materials and in particular preserving and processing of foodstuffs and plants and processing of foodstuffs and plants. Class 42: Design and engineering of installations and methods for processing foodstuffs and plants; design and engineering of clean rooms; design of clean rooms; research relating to plant breeding; biotechnological research relating to horticulture; pharmaceutical drug development services; biochemistry research services; biochemical research and analysis; conducting of scientific studies; agricultural research; scientific research; scientific research and analysis; research of new products for others; research to develop new products; product research; research services in the field of foodstuffs; technical consultancy relating to product development; engineering drawing; design of specialist machinery; design of industrial machinery; design of industrial plant. Class 44: Agriculture, horticulture and forestry services; indoor and vertical farming services growing edible plants, fruits, vegetables, herbs, legumes, and fungi; hydroponic farming services; farming services in the field of fruits, vegetables, herbs, legumes, and fungi; advisory and consultancy services relating to the use of non-chemical treatments for sustainable agriculture and horticulture; consultancy relating to the cultivation of plants; cultivation of marijuana and cannabis.

The Applicant

7.  The Applicant has not filed any evidence and as such I have no information about it other than what is set out on the Register. 

Grounds of Opposition, Onus and Standard of Proof

1. As indicated above, in the SGP the Opponent nominated grounds of opposition under ss 44  and 58A.  To successfully oppose the application the Opponent needs to establish one of the nominated grounds.

   9.  The onus of proof in an opposition rests upon the Opponent.[2]  The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[3]  The date at which the rights of the parties are to be determined is the relevant date, which is also the priority date for the purposes of ss 44.[4]

   Discussion

   Section 44

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

   [3] Following Pfizer Products Inc v Karam (2006) 70 IPR 599, [6]-[26] (Gyles J), and Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

   [4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J), see also s 29(1) Trade Marks Act 1995 (Cth).

2. The relevant provisions of s 44 are reproduced below:

   Section 44 - Identical etc. trade marks

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

   (a)it is substantially identical with, or deceptively similar to:

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

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

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

   Note 1: For deceptively similar see section 10.

   Note 2: For similar goods see subsection 14(1).

   (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. …

   (3)If the Registrar in either case is satisfied:

   (a)that there has been honest concurrent use of the 2 trade marks; or

   (b)that, because of other circumstances, it is proper to do so;

   the Registrar may accept the application for the registration of the applicant's trade mark subject to any conditions or limitations that the Registrar thinks fit to impose. If the applicant's trade mark has been used only in a particular area, the limitations may include that the use of the trade mark is to be restricted to that particular area. 

   Note:  For limitations see section 6.

   (4)If the Registrar in either case is satisfied that the applicant, or the applicant and the predecessor in title of the applicant, have continuously used the applicant's trade mark for a period:

   (a)beginning before the priority date for the registration of the other trade mark in respect of:

   (i)              the similar goods or closely related services; or

   (ii)             the similar services or closely related goods; and

   (b)ending on the priority date for the registration of the applicant's trade mark;

   the Registrar may not reject the application because of the existence of the other trade mark.

   Note 1: An authorised use of the trade mark by a person is taken to be a use of the trade mark by the owner of the trade mark (see subsection 7(3)).

   Note 2: For predecessor in title see section 6.

   Note 3: For priority date see section 12.

   Section 10 - Definition 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.

3. To successfully oppose the application pursuant to s 44 the Opponent must establish the requirements of s 44(1) or (2), i.e. that at least one of the trade marks upon which it relies, being a trade mark registered by a person other than the Applicant:

   ·     has a priority date which is earlier than that of the Trade Mark (‘the first requirement’);

   ·     is substantially identical with or deceptively similar to the Trade Mark (‘the second requirement’); and

   ·     is in respect of similar goods, and/or services which are closely related to, the Applicant’s Goods and Services (‘the third requirement’).

4. In the event that each of these requirements is satisfied by the Opponent it may still be possible for the Registrar to accept the application (or allow it to proceed to registration) if the Registrar is satisfied, pursuant to ss 44(3) and 44(4), that there has been honest concurrent use of the Trade Mark, other circumstances which would make registration of the Trade Mark proper, or that the Applicant has continuously used the Trade Mark beginning before the priority date of the Opponent’s relied upon mark.  In the present case as the Applicant has provided no evidence of use prior to the relevant date or other circumstances that would make registration of the Trade Mark proper it is not necessary to consider these provisions.

5. The Opponent has particularised the ground of opposition in the SGP by reference to the Opponent’s Trade Mark.  The Opponent’s Trade Mark has a priority date that is earlier than the priority date of the Trade Mark.  Furthermore the Opponent’s Trade Mark is registered for various plant products in class 31 which are similar goods to the plants and related products that fall within class 31 of the Applicant’s Goods and Services.  The first requirement is satisfied and the third requirement is satisfied with at least a subset of the Applicant’s Goods and Services.

   Substantially identical and/or deceptively similar

6. I will now consider whether the Trade Mark is substantially identical to the Opponent’s Trade Mark.  When considering ‘substantial identity’ in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd Windeyer J said:

   In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[5]

   [5] [1963] HCA 66, [12].

7. The Trade Mark and the Opponent’s Trade Mark are set out side-by-side below:

8. On a side-by-side comparison there are clear differences which mean that a total impression of dissimilarity emerges from a comparison between the Opponent’s Trade Mark and the Trade Mark. Indeed the only common element is the shared use of the word ‘farm’.  I move then to consider whether the Trade Mark and Opponent’s Trade Mark is deceptively similar.

9. The principal authority for guidance in determining whether trade marks are deceptively similar also comes from the judgment of Windeyer J in Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd:

   On the question of deceptive similarity, a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff’s mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant’s [trade mark].[6]

   [6] Ibid [13].

10. Jacobson J in Millennium & Copthorne International Limited v Kingsgate Hotel Group Pty Ltd summarised the principles of deceptive similarity with reference to the authorities as follows:

    Without seeking to reformulate the various statements of principle stated in the Full Court authorities, it is sufficient for present purposes to identify the critical elements which seem to me to inform the issue of deceptive similarity in the present case. There are nine elements.

    First, the judgment of likelihood of deception is a practical one. It requires an assessment of the effect of the challenged mark on the minds of potential customers: Woolworths[7] at [49]; Australian Woollen Mills[8] at 658.

    Second, the question of deceptive similarity is not to be decided by a side-by-side comparison. It is to be determined by a comparison of the impression based on recollection of the opponent’s mark that persons of ordinary intelligence and memory would have, and the impression that those persons would get from the opposed trade mark: Crazy Ron’s[9] at [73]; Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd [1963] HCA 66; (1963) 109 CLR 407 at 415 per Windeyer J.

    Third, allowance must be made for imperfect recollection: Crazy Ron’s at [74].

    Fourth, the effect of the spoken description must be considered: Woolworths at [49]; Crazy Ron’s at [75]; Australian Woollen Mills at 658.

    Fifth, it is necessary to show a real tangible danger of deception or confusion: Woolworths at [43] and [50]; Crazy Ron’s at [76]; Southern Cross Refrigerating[10] at 594 – 595.

    Sixth, a trade mark is likely to ‘cause confusion’ if the result of its use will be that a number of persons are ‘caused to wonder’ whether the two products come from the same source: Woolworths at [50]; Southern Cross Refrigerating Co at 595. This test sets a lower threshold than that which is required to establish that conduct is likely to mislead or deceive under s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth): see McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd [1980] FCA 159; (1980) 33 ALR 394 at 398 per Smithers J.

    Seventh, all surrounding circumstances must be taken into consideration. The circumstances include those in which the marks will be used, and in which the goods or services will be bought and sold, as well as the character of the probable acquirers of the goods and services: Woolworths at [50]; Crazy Ron’s at [86] – [89]; Southern Cross Refrigerating at 595.

    Eighth, the question of whether there is a likelihood of confusion is not to be answered by reference to the manner in which a party has used the mark, but by reference to what an applicant can do. That is to say, the use to which it can properly put the mark if registration is obtained: Woolworths at [50]; Berlei Hestia Industries Ltd v The Bali Company Inc [1973] HCA 43; (1973) 129 CLR 353 at 362 per Mason J.

    Ninth, if a registered trade mark includes words which can be regarded as an ‘essential feature’ of the mark, another mark that incorporates those words may cause a tangible danger of deception or confusion by reason of consumers retaining an imperfect recollection of those words: Crazy Ron’s at [79]. However, care must be taken to not too readily characterise words in a composite trade mark as an ‘essential feature’ because to do so may effectively convert a composite mark into something different: Crazy Ron’s at [100].[11]

    [7] Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020, (French Branson and Tamberlin JJ).

    [8] Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51; (1937) 58 CLR 641,(Dixon and McTiernan JJ).

    [9] Crazy Ron’s Communications Pty Ltd v Mobileworld Pty Ltd [2004] FCAFC 196; (2004) 209 ALR 1,(Moore, Sackville and Emmett JJ). .

    [10] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, (Kitto J)

    [11] [2012] FCA 1022, [37]-[46].

1. In the recent High Court case of Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd, the Court noted the following[12]:

   In considering the likelihood of confusion or deception, "the court is not looking to the totality of the conduct of the defendant in the same way as in a passing off suit"[13]. In addition to the degree of similarity between the marks, the assessment takes account of the effect of that similarity considered in relation to the alleged infringer's actual use of the mark[14], as well as the circumstances of the goods, the character of the likely customers, and the market covered by the monopoly attached to the registered trade mark[15]. Consideration of the context of those surrounding circumstances does not "open the door" for examination of the actual use of the registered mark, or, as will be explained, any consideration of the reputation associated with the mark[16]

   [12] [2023] HCA 8, [33] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).

   [13] New South Wales Dairy Corporation v Murray-Goulburn Co‑operative Co Ltd [1989] FCA 124; (1989) 86 ALR 549 at 589 (emphasis added), approved in Henschke (2000) 52 IPR 42 at 62 [44], Hashtag Burgers [2020] FCAFC 235; (2020) 385 ALR 514 at 532 [64], Combe International Ltd v Dr August Wolff GmbH & Co KG Arzneimittel [2021] FCAFC 8; (2021) 157 IPR 230 at 238 [27], PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd (2021) 285 FCR 598 at 622 [97] (see also 626 [111]) and Swancom (2022) 168 IPR 42 at 56 [73].

   [14] TM Act, s68

   [15] New South Wales Dairy [1989] FCA 124; (1989) 86 ALR 549 at 589.

   [16] Swancom (2022) 168 IPR 42 at 59 [89]. See also Henschke (2000) 52 IPR 42 at 62 [44].

2. As stated above, for the purposes of considering deceptive similarity, the reputation of the Opponent’s Trade Mark is not a relevant factor.[17]

   [17] See Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd [2022] FCAFC 157, [93] (Yates, Abraham and Rofe JJ) and, albeit in the s120(1) context Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, [49] (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ).

3. In the present case, each mark contains a word beginning with the letter ‘p’ (Plant/Planet) which is then applied to the word ‘Farm(s)’.  Each mark also contains a device element that has some conceptual similarity, in that each of the devices evoke plants in some way but is otherwise quite dissimilar, with the Trade Mark’s device being a trowel and a vine and the Opponent’s Trade Mark’s device being a seedling within a circle.  However this conceptual similarity is somewhat undercut by the fact that the words ‘plant’ and ‘planet’ have distinctly different meanings.  The Trade Mark also contains the additional words ‘the’ and ‘est. 2021’.  When considering the marks as a whole and their impact on the likely purchasers of plant products (the goods that are similar between both marks), I am not satisfied there is a real tangible danger of deception or confusion.  The marks are conceptually different; one evokes a farm for plants that was established in 2021, while the other evokes a string of farms across the planet.  Visually the marks are also different, noting the presence of the different devices, additional words in the Trade Mark and the difference between ‘plant’ and ‘planet’.  While it is arguable that there is some risk of confusion arising from the fact that each mark contains, as prominent elements, words that begin with ‘plan’ and end in the word ‘farm’, such a risk is mitigated by the nature of the goods to which the marks are applied – such terms are commonly used in respect of plants and consumers are likely to somewhat discount the presence of these common elements in assessing the respective marks and focus more on the more distinctive elements, being the devices and the term ‘planet’.  For these reasons I am unpersuaded that the use of the Trade Mark on the Applicant’s Goods and Services would result in a number of persons being ‘caused to wonder’ if the Applicant’s Goods and Services come from the same source as the Opponent’s Goods and Services to which the Opponent’s Trade Mark is applied.

4. I find that the Opponent has failed to establish the ground of opposition under s 44.

   Section 58A

   23.     Section 58A is reproduced below:

   Section 58A – Opponent’s earlier use of similar trade mark

   (1)This section applies to a trade mark (section 44 trade mark) the application for registration of which has been accepted because of:

   (a)subsection 44(4); or

   (b)a similar provision of the regulations made for the purposes of Part 17A.

   Note: Subsection 44(4) prevents rejection of an application for registration of a trade mark that is substantially identical with, or deceptively similar to, a registered trade mark whose registration is being sought where the first-mentioned trade mark has been continuously used since before the priority date of the other trade mark.

   (2)The registration of the section 44 trade mark may be opposed on the ground that the owner of the substantially identical or deceptively similar trade mark (similar trade mark) or the predecessor in title:

   (a)first used the similar trade mark in respect of:

   (i)     similar goods or closely related services; or

   (ii)    similar services or closely related goods;

   before the owner of the section 44 trade mark or the predecessor in title in relation to the section 44 trade mark first used the section 44 trade mark; and

   (b)has continuously used the similar trade mark in respect of those goods or services since that first use.

   Note:  For predecessor in title see section 6.

   24.     For s 58A to apply, the trade mark must have been accepted by the examiner under the provisions of s 44(4), or a hearing officer finds during an opposition that it is appropriate to apply the provisions of s 44(4).  In this matter the Trade Mark was not accepted by the examiner under the provisions of s 44(4).  Furthermore, given my finding that the Trade Mark is not substantially identical with, or deceptively similar to the Opponent's Trade Mark, the provisions of s 44(4) are not available to be applied in this opposition proceeding. As such this ground of opposition is not available to the Opponent. 

   Decision and Costs

5. The Opponent has failed to establish any of the grounds of opposition it nominated in the SGP.  Trade mark application number 2181444 may proceed to registration not less than 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 either the appeal is withdrawn or discontinued.  Otherwise, the disposition of the application should be in accordance with the Court’s order or direction.

6. The Applicant has sought an award of costs in its favour. I see no reason to depart from the general rule that costs follow the event. I accordingly award costs against the Opponent under s 221 in the relevant amounts under Schedule 8 of the Regulations.

   Nicholas Smith

   Hearing Officer

   Delegate of the Registrar of Trade Marks

   4 July 2023