Plantation Outdoor Kitchens Pty Limited v the BBQ Store Pty Ltd
[2017] ATMO 43
•15 May 2017
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Plantation Outdoor Kitchens Pty Limited to registration of trade mark application 1669879 (35) - THE BBQ STORE (and Device) - filed in the name of The BBQ Store Pty Ltd.
| Delegate: | Heath Wilson |
| Representation: | Opponent: Brian Elkington of Adams Pluck. Applicant: James Maxwell of Peter Maxwell & Associates. |
| Decision: | 2017 ATMO 43 Opposition to registration under section 52 of the Trade Marks Act 1995 – grounds of opposition under sections 42(b), 44 and 60 of the Act – s44(4) applicable - reputation and likelihood of deception or confusion considered under section 60 – trade mark to proceed to registration. |
Background
This matter concerns an opposition to the registration of an Australian trade mark application. The current details of the trade mark application opposed under section 52 of the Trade Marks Act 1995 (‘the Act’) are:
Trade Mark No: 1669879
Trade Mark:
(‘the Trade Mark’)
Specification of Services:
Class 35: Retail and wholesale services, including in relation to barbecues and other cooking and heating apparatus and parts and accessories therefor, including on-line retail and wholesale services
Filing Date: 20 January 2015
Owner: The BBQ Store Pty Ltd (‘the Applicant’)
Following acceptance of the above trade mark application at the examination stage and its subsequent advertisement in the Australian Official Journal of Trade Marks on 11 June 2015, a notice of intention to oppose registration was filed by Plantation Outdoor Kitchens Pty Limited (‘the Opponent’). The Statement of Grounds and Particulars (‘SGP’) filed by the Opponent particularized grounds of opposition under sections 41, 44 (on the basis of trade mark registration no. 1524060), 60 and 42(b) of the Act.
The Applicant filed its notice of intention to defend and the evidence stages of the opposition commenced. As evidence in support, the Opponent filed:
Statutory Declaration of Matthew Edwards (Director of the Opponent) made 13 November 2015 with Annexures A to G (‘Edwards’).
The Applicant filed as evidence in answer:
Declaration of Gabriel Gewargis (Managing Director of the Applicant) made 24 February 2016 with exhibits GG-1 to GG-30 (‘Gewargis’).
Finally, the Opponent filed its evidence in reply, comprising:
Statutory Declaration of Les Sperring (National Sales Manager for Beefeater Barbecues) made 13 November 2015.
The parties requested to be heard and the opposition was set down for an oral hearing in Canberra on 23 February 2017. I was allocated to hear and decide the opposition as a delegate of the Registrar of Trade Marks.
Both the Opponent and the Applicant provided written submissions in accordance with my directions made before the hearing. The Opponent relied only on the grounds under sections 42(b), 44 and 60 of the Act.
Onus
The Opponent bears the onus of establishing at least one of the grounds of opposition on the civil standard of the balance of probabilities.[1] The rights of the parties are to be determined as at the date of the application[2] which is generally, but not always, the filing date.[3] The relevant date in this opposition is 20 January 2015.
[1] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] affirming the approach of Gyles J in Pfizer Products Inc. v Karam [2006] FCA 1663, [26].
[2] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82; (1954) 91 CLR 592, [595].
[3] See sections 6, 12, and 72 of the Act.
Section 44
Section 44 of the Act relevantly provides:
44 Identical 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.
(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.
With reference to the above provisions, the Opponent must therefore establish the existence of an earlier filed trade mark owned by another person that is not only substantially identical with, or deceptively similar to the Trade Mark, but also is in respect of similar services or closely related goods.
The priority date for the Opponent’s trade mark is 5 November 2012 which is earlier than the relevant date for the Trade Mark. Other relevant details for that trade mark appear below:
Trade Mark no: 1524060
Trade Mark:
(‘the Opponent’s trade mark’)
Specification of Goods: Class 11: Barbeques
The first consideration is whether the Applicant’s services (including inter alia, the retail and wholesale of barbecues) are closely related to barbecues.
Closely related services
In Woolworths Ltd v Registrar of Trade Marks, Wilcox J said:
The questions whether one mark is deceptively similar to another and whether the first mark is used in respect of services closely related to particular goods (or similar to other particular services) are conceptually distinct. However, the first question cannot 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. The examples offered by Lockhart J in Caterpillar Loader Hire make the point. There are extremely close associations between the sale of data processing equipment and the provision of programs for its operation, the sale and sewing of curtains and the sale and tailoring of clothes. Because the relevant service is so specialised, and focused on the particular goods, it would be natural for any member of the public to treat a similarity of name as being an indication of a link between the origin of the goods and that of the service. At the other extreme, the use of even the same name, by traders in different industries, would not usually cause members of the public to assume a link between the traders.[4]
[4] See Woolworths Ltd v Registrar of Trade Marks [1998] FCA 1268.
The case I have before me involves a specific product (‘barbecues’) which is likely to be sold (including via online sales) both by specialised barbecue stores and in the kitchen and/or outdoor appliances sections of larger department/hardware stores. The services in the specification of the Trade Mark broadly claim ‘retail and wholesale services’ but importantly specify those services in relation to ‘barbecues and other cooking and heating apparatus.’ In the context of the specification there is clearly a link between the origin of the goods and that of the service.[5] The retail services in this case are being performed directly upon the goods, and the ordinary consumer faced with the subject trade marks would regard the manufacture and the sale of these goods to be part of the same industry. It is evident that in many (but not all) instances, the manufacture of barbecues and the selling of those barbecues are offered by the one organization.
[5] See the relevant factors discussed in Re Aussat Pty Ltd (1993) 27 IPR 309, (311).
There is nothing unusual or unexpected about such a finding. Indeed, I note that the issue of whether the goods were closely related to the services (and, in fact, the further question of whether the trade marks were deceptively similar) was not disputed by the legal representative for the Applicant. Instead, the arguments largely concerned whether the Applicant had demonstrated prior continuous use of the Trade Mark such that it may be accepted under the provisions of section 44(4) of the Act.
I will, however, for completeness consider whether the two trade marks are substantially identical and/or deceptively similar with regard to the relevant legal principles.
‘Deceptively Similar’
On a side-by-side comparison[6], the differences between the trade marks are such that they are not substantially identical.[7] In terms of whether the trade marks are deceptively similar, section 10 of the Act provides that a ‘deceptively similar’ trade mark means a trade mark that ‘so nearly resembles another trade mark that it is likely to deceive or cause confusion’.
[6] Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd (1961) 109 CLR 407, (414-415).
[7] See further The BBQ Store Pty Ltd v Plantation Outdoor Kitchens Pty Ltd [2015] ATMO 34, [27]-[30].
In the case of Australian Woollen Mills Ltd v F. S. Walton and Company Ltd Dixon and McTiernan JJ provided the relevant test for comparison:
[T]he marks ought not … to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same … The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded.[8]
[8] Australian Woollen Mills Ltd v F. S. Walton and Company Ltd (1937) 58 CLR 641, (658).
For the overall impression of the two trade marks, the visually prominent and common element between them is undoubtedly the expression ‘The BBQ Store’. Despite similar connotations, there is a visual difference between the device elements, with the Opponent’s trade mark containing a flame device and the Trade Mark featuring a meat product on a skewer. Additionally, the Opponent’s trade mark also contains the descriptor ‘Outdoor Kitchen Appliances’ in a comparatively much smaller font than the common expression ‘The BBQ Store’.
For a decision maker to estimate the effect of the trade marks on the relevant consumer, one must pay less attention to elements that lack distinctiveness. Despite the fact that the expression ‘The BBQ Store’ is apt for normal description in relation to the goods and services, it is visually prominent and identical within both trade marks, and the remaining word and picture elements do not serve to sufficiently differentiate them. I therefore find the overall impression of the trade marks is that they are deceptively similar.
Section 44(4): Prior Continuous Use
The Applicant was registered as an Australian company on 17 December 2010 and the Applicant’s domain name (‘ was also registered around this time.[9] Although the Applicant’s website did not go live until 15 May 2014, the services under the Trade Mark had been promoted via other online channels since early 2012.[10] On 12 February 2012, the Applicant set up operations in Prestons, NSW.
[9] Gewargis, exhibit GG-6.
[10] Gewargis, [26].
The Applicant was incorporated for the purpose of promoting, marketing and providing goods and services under the Trade Mark. The Applicant sells barbecues directly from its outlet and also by way of wholesale orders/telemarketing, phone orders, ‘eBay’ and email orders, via ‘Facebook’, on ‘Gumtree’ and in the ‘Yellow Pages’. The Managing Director of the Applicant, Mr Gewargis, has also provided significant sales figures for services provided under the Trade Mark since 2011.
According to Mr Gewargis, the first use of the Trade Mark occurred in January 2011 in respect of the claimed services. On 29 March 2011, the Applicant ordered staff t-shirts bearing the Trade Mark.[11] The abovementioned evidence of prior use of the Trade Mark is further bolstered by its appearance on emails dated 29 March 2011 and the aforementioned ordering of company shirts for the store. In addition, exhibit GG-2A to Gewargis is evidence of a sale of a barbecue and associated parts in an invoice dated 29 September 2011.
[11] Gewargis, exhibit GG-2.
The Opponent commenced use of the Opponent’s trade mark on or around May 2012 after conducting searches with the NSW Department of Fair Trading, on the ‘Google’ search engine and on the ASIC database.
Nevertheless, the Applicant has clearly demonstrated continuous use of the Trade Mark on closely related services beginning at a date before 5 November 2012 (being the priority date of the Opponent’s trade mark) and ending on 20 January 2015. In the circumstances, the Registrar may not reject the application because of the existence of the Opponent’s trade mark. The provisions of section 44(4) apply, and I find that the ground of opposition under section 44(2) of the Act has not been established.
Section 60
Section 60 of the Act provides:
60Trade mark similar to trade mark that has acquired a reputation in Australia
The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:
(a)another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and
(b)because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.
Note:For priority date see section 12.
To successfully oppose registration of the Trade Mark under section 60 of the Act, the Opponent must firstly demonstrate the existence of a reputation in a trade mark before 20 January 2015. Secondly, the Opponent must then establish that due to the reputation demonstrated, use of the Trade Mark in relation to its claimed retail and wholesale services would be likely to deceive or confuse Australian consumers.
Australian legal precedent points to a requirement that a ‘significant’ or ‘substantial’[12] number of consumers within the relevant trade/market (rather than consumers as a whole) must be likely to be deceived or confused for this ground to be established. The assessment of what is ‘significant or substantial’ must be properly and sensibly applied[13] and may depend on the specialised nature of the relevant market.[14]
[12] See Renaud Cointreau & Cie v Cordon Bleu International Ltee (2001) 52 IPR 382; [2001] FCA 1170 and ConAgra Inc. v McCain Foods (Aust) Pty Ltd [1992] FCA 159; (1992) 23 IPR 193.
[13] “Bali” Trade Mark [1969] RPC 472, (496).
[14] Le Cordon Bleu BV v Cordon Bleu International Ltee (2001) 50 IPR 1; [2000] FCA 1587, [20].
Although the provisions of prior continuous use have been applied to the Trade Mark, section 60 is not subject to any such limitation. As Justice Kenny in the McCormick decision found:
Section 60, which is part of a division specifically setting out the grounds for opposing registration, is directed to the position after acceptance. Section 60 is not expressed to be subject to s 44(3), any analogous limitation, or even the Act generally..... s 60 is apparently intended to afford a ground of opposition that is additional to the grounds set out in Pt 4...[15]
[15] McCormick & Co Inc. v McCormick [2000] FCA 1335, [93].
Reputation in the Opponent’s Trade Mark
Edwards provides that the Opponent’s trade mark (trade mark registration no. 1524060) has been in continuous use in Australia since July 2012. Accordingly, it appears that there has been almost three years of use of the Opponent’s trade mark upon or in relation to barbecues before the Applicant’s priority date.
From August to November 2012, the Opponent started designing a website and ‘ went live on 25 August 2012. The Opponent also began a ‘Google Adwords’ campaign, produced point of sale material for its showroom, opened a ‘Facebook’ account and created an online advertisement for ‘YouTube’.
Some of the evidence in Edwards compares the reputation of the Opponent’s trade mark with the Applicant’s, and also indicates that the Opponent’s website was in operation well before the Applicant’s website. I am uncertain as to the relevance of this information. The implication that the Opponent’s trade mark has a comparatively larger reputation than the Trade Mark at the relevant date has little bearing on the requirement for the Opponent to establish a significant or substantial reputation for its trade mark in the relevant marketplace under section 60(a).
According to Edwards, the Opponent’s business is now among the top 3 independent barbecue stores in Australia.[16] Although there is nothing in the evidence provided to support that statement, the bulk of the Opponent’s evidence may support such a general claim. The annual revenue for the sale of goods from June 2012 to June 2016 is significant and the advertising expenditure is not insubstantial, utilising a variety of media.
[16] Edwards, [18].
As Kenny J said in the case of McCormick & Co Inc. v McCormick:
In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product.[17]
[17] (2000) 51 IPR 102, (127).
Apart from the abovementioned online advertising campaigns, the Opponent’s trade mark has also appeared in newspapers such as the Mosman Daily, the North Shore Times, the Sydney Morning Herald and The Sunday Telegraph. Annexure E to Edwards provides the detail of different forms of continuous advertising and promotion before the relevant date.
Mr Edwards further attests to confusion occurring in the marketplace, such as:
The Opponent frequently receives phone calls and e-mails from customers who have seen the Applicant’s Mark in an advertisement or on the Internet and are confused into believing there is some relationship between the Opponent and the Applicant. People often ask if we have a showroom in Prestons (where the Applicant’s business is located) or if the Applicant’s business is related to the Opponent’s business. It is not uncommon for customers to accidently go to the Applicant’s website after placing orders or otherwise conducting business with the Opponent.[18]
[18] Edwards, [23].
On the facts of the current opposition, there may be a number of reasons for the confusion between the respective parties’ businesses. The evident similarities between domain names and email addresses may be a contributing factor, so too is the fact that both parties are located in Sydney. The confusion between the email addresses is made clear in one instance where the Opponent (email address: ‘[email protected]’) mistakenly sent an email to the Applicant (‘[email protected]’).[19]
[19] Gewargis, exhibit GG-25.
The geographical proximity of the parties’ businesses also does not assist in determining whether the reputation in the Opponent’s trade mark is the cause of the confusion as the ‘proximity of businesses does no more that demonstrate beyond question that such a possibility is real and not imaginary.’[20]
[20] See Sym Choon & Co Ltd v Gordon Choon Nuts Ltd (1949) 80 CLR 65, (72).
Exhibits GG-23 to GG-25 in Gewargis are copies of emails and other correspondence regarding customer confusion between the Trade Mark and the Opponent’s trade mark. When prompted by Mr Gewargis, the confusion is described by one customer as:
In terms of logo I think it’s a combo of logo and name. I think i first assumed I was going to their website as the names were similar and tge (sic) logo colours may have had some part in it.[21]
[21] Gewargis, exhibit GG-23.
As I have found, the trade marks are deceptively similar, both prominently featuring the identical expression ‘The BBQ Store’. Having said that, in the case of trade marks where it is the common descriptive expression between the trade marks that is likely to cause confusion in the marketplace, some level of confusion between the brands (while undoubtedly inconvenient and frustrating to one or both parties) must be accepted. On this point, in the decision of The BBQ Store Pty Ltd v Plantation Outdoor Kitchens Pty Ltd the hearing officer referred to the reasoning of the High Court in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (‘Hornsby’)[22] and commented:
Like the descriptive phrase “Building Information Centre” in relation to a business which provides advice about building, the phrase “The BBQ Store” is on the face of it apt for normal description of a business which sells barbeques. That the opposed application covers “barbecues” in Class 11 rather than, say, “retail and wholesale of barbecues” in Class 35, does not alter this fact. As such some potential confusion between the parties’ businesses, and by extension their respective goods, might be anticipated.[23]
[22] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216.
[23] [2015] ATMO 34, [43]
I am not convinced that the demonstrated confusion within the evidence occurred as a result of the demonstrated reputation in the Opponent’s trade mark. The other contributing factors include the descriptiveness of the expression in common, the similarity of domain/email addresses and the geographic proximity of the businesses. This however, does not necessarily preclude the potential likelihood of deception or confusion arising from the use of the Trade Mark.
This potential likelihood of deception or confusion arising from reputation of the Opponent’s trade mark is greatly influenced by the high level of descriptiveness within the common expression ‘the BBQ Store’. As I have said, a certain level of confusion must be accepted in that context. The question is whether the reputation established is sufficient to overcome that obstacle and demonstrate a likelihood of confusion arising from the reputation in the Opponent’s trade mark. It is true that the reputation of the Opponent’s trade mark is relatively significant within this particular industry, but I note it has only occurred over the period of less than three years and apart from use on social media, the reputation appears confined to Sydney and the surrounding areas.
In the end, I am not satisfied that the level of reputation in the Opponent’s trade mark is sufficient for deception or confusion to be likely to arise for that reason alone. It is much more likely that any confusion arising would be due to the close similarity of the trade marks themselves operating within the same industry and, importantly, the descriptiveness of the expression ‘the BBQ Store’. This finding is reinforced by the demonstrated instances of confusion that have occurred to date, where none of those customers appear confused because they have heard of the Opponent’s trade mark rather than the Applicant’s. As the trade marks have already co-existed for a number of years, the nature of the demonstrated confusion that has occurred to date is a telling indication of the type of confusion that is likely to occur in the future.
Accordingly, I am not satisfied that the Opponent has discharged the onus and I find that the ground of opposition under section 60 of the Act has not been established.
Section 42(b)
Section 42 of the Act provides:
42 Trade mark scandalous or its use contrary to law
An application for the registration of a trade mark must be rejected if:
(a) the trade mark contains or consists of scandalous matter; or
(b) its use would be contrary to law.
In pursuit of this ground the Opponent alleges that the use of the Trade Mark would contravene the provisions of sections 18 and 29 of the Australian Consumer Law[24] together with the corresponding provisions of the Fair Trading Acts in each State and Territory. The Opponent also alleges that the use of the Trade Mark would contravene the common law tort of passing off.
[24] Schedule 2 to the Competition and Consumer Act 2010.
The Opponent again relied upon the demonstrated instances of confusion in pursuing this ground. At the risk of repetition, the key consideration is the reason for that confusion occurring: As Gibbs CJ stated in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd:
… I agree too with those learned judges that the court must decide objectively whether the conduct is misleading or deceptive or likely to mislead or deceive, and that evidence that members of the public have actually been misled is not conclusive: see at 399-400 and 413-4. I would add that evidence that members of the public were misled, not by any conduct of the defendant, but by other circumstances for which the defendant was not responsible, would be quite irrelevant.[25]
[25] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44, [8].
In addition, the following observations from the case of SAP Australia Pty Ltd v Sapient Australia Pty Ltd are relevant:
It is consistent with that general proposition, however, to accept that conduct may not be misleading or deceptive or likely to mislead or deceive, notwithstanding that it may engender temporary and commercially irrelevant error - see Lumley Life Ltd v IOOF of Victoria Friendly Society (1990) ATPR 40-987 at 50,838 per Lockhart J. The characterisation of conduct as "misleading or deceptive or likely to mislead or deceive" involves a judgment of a notional cause and effect relationship between the conduct and the putative consumer's state of mind. Implicit in that judgment is a selection process which can reject some causal connections, which, although theoretically open, are too tenuous or impose responsibility otherwise than in accordance with the policy of the legislation.[26]
[26] SAP Australia Pty Ltd v Sapient Australia Pty Ltd [1999] FCA 1821, [51].
The instances of confusion are, in my opinion, no more than the sort of temporary and commercially irrelevant error referred to above. The comments made in Hornsby are even more relevant in the context and the ‘possibility of blunders by members of the public’ must be acceptable in that regard.
The Opponent has alleged that the Applicant began using the Trade Mark in the face of an existing reputation in the Opponent’s trade mark. Such an allegation is simply not supported by the facts before me, which point to earlier use by the Applicant of the Trade Mark. There was certainly no significant reputation in the Opponent’s trade mark at the time the Applicant commenced its trade mark use in Australia. In addition, I have already addressed the nature and extent of the demonstrated reputation earlier in this decision.
The facts of this matter (and taking into account my findings under section 60) do not rise to the level where the Registrar can be satisfied that the use of the Trade Mark ‘would’[27] be contrary to law, whether it be under the provisions of the Australian Consumer Law or under the tort of passing off.
[27] Not ‘could’: See Advantage Rent - A-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683; (2001) 52 IPR 24, [28].
I find that the ground of opposition under section 42(b) of the Act has not been established.
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 Opponent has not established a ground of opposition under the Act. I therefore direct that trade mark application no. 1669879 may proceed to registration one month from the date of this decision.
If the Registrar is served with a notice of appeal before that time, I direct that the registration shall not occur until the appeal has been withdrawn or discontinued. Otherwise, the disposition of the application will be subject the order of the Court.
Costs
The opposition has been unsuccessful and I award costs against the Opponent under section 221 of the Act in line with the relevant amounts in Schedule 8 of the Trade Marks Regulations 1995.
Heath Wilson
Hearing Officer
Oppositions and Hearings
15 May 2017
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