Plus Technologies Pty Ltd v Swart & Sons Pty Ltd

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Plus Technologies Pty Ltd to an application under section 92 of the Trade Marks Act 1995 (Cth) by Swart & Sons Pty Ltd to remove trade mark number 2040828 (class 9) - CERTIFIRED - in the name of Plus Technologies Pty Ltd

Delegate:

Nicholas Butson

Representation:

Opponent: Craig Smith of Counsel instructed by Gadens Lawyers

Applicant: Karla Holzberger and Jacob Grumetza of IP Wealth

Decision:

2022 ATMO 156

Trade Marks Act 1995 (Cth) – application under section 92(4)(a) – evidence of use considered – whether use was in good faith – use of the trade mark in good faith established for some goods – no intention or use found in good faith for other goods – discretion not exercised - trade mark partially removed

Background

This matter is an application for removal of a trade mark under s 92 of the Trade Marks Act 1995 (Cth).[1]
[1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act1995 (Cth) and each reference to a regulation is a reference to a regulation of the Trade Marks Regulations1995 (Cth).
Plus Technologies Pty Ltd (‘Opponent’) is the owner of the following Australian trade mark registration:
Trade mark number:      2040828
Trade mark:   Certifired (‘Opponent’s Trade Mark’)
Filing date:   1 October 2019
Specification:                    Class 9: computer software; application software; computer software applications (downloadable); computer software products; computer software packages; computer software (programs); computer software programs; computer software (recorded); downloadable software applications (apps); computer software programs for database management; computer software platforms, recorded or downloadable; computer software for business purposes; computer programs and recorded software distributed online (‘Opponent’s Goods’)
On 26 October 2020, Swart & Sons Pty Ltd (‘Applicant’) filed an application based on s 92(4)(a) of the Trade Marks Act (Cth) (‘Act’), seeking complete removal of the Trade Mark from the Trade Marks Register (‘Register’).
A Notice of Intention to Oppose the removal and a Statement of Grounds and Particulars (‘SGP’) were filed by the Opponent on 19 November 2020. A Notice of Intention to Defend was filed by the Applicant on 21 December 2020.
The Opponent filed evidence in support on 23 March 2021. Evidence in answer was filed by the Applicant on 23 June 2021. Evidence in reply was filed by the Opponent on 25 August 2021.
Following the evidence stages, the parties requested to be heard. Both parties filed an outline of submissions prior to the hearing. As a delegate of the Registrar of Trade Marks, I heard the matter by video conference on 3 August 2022. Craig Smith of Counsel and Kasia Jaruzelska from Gadens Lawyers appeared on behalf of the Opponent. Karla Holzberger and Jacob Grumetza, both from IP Wealth appeared on behalf of the Applicant.
Evidence
Both the Opponent and Applicant have provided a number of submissions in their evidence. They have been given appropriate weight in line with any evidence that supports them.
Evidence in support
The Opponent’s evidence in support comprises:
·A declaration by Gina Patrick, director of the Opponent, made on 23 March 2021 with Exhibit GP-1 (‘First Patrick Declaration’).
The First Patrick Declaration provides information on the background of the Opponent. This includes the creation of the company in 2018 for the purpose of developing technology for passive fire data collection. It also details the subsequent development of a software application which I discuss in some detail further below.
The First Patrick Declaration also sets out how the Opponent’s Trade Mark was chosen. This includes preparatory online searches conducted in May 2018 for traders using similar trade marks. The declaration further submits that the Opponent was not aware of traders with similar names in Australia during this process and when filing for the Opponent’s Trade Mark on 1 October 2019.
The First Patrick Declaration includes submissions and evidence of use of the Opponent’s Trade Mark in the marketplace, including that it was:
·Prominently displayed on the Opponent’s website (plustechnologies.com.au) from September 2019, with over 6000 visitors and 13,000 views since May 2018. Data has also been provided showing a breakdown of website views per month from May 2018 to January 2021.
·On the Opponent’s Facebook account since September 2020.
·On the Opponent’s LinkedIn account since September 2019, with over 50 followers.
·On mailouts since March 2020 to over 150 subscribers.
·On marketing material first used in 2019 and provided to guests at business forums at various dates from 3 December 2019 to 19 March 2021.
·On a YouTube seminar hosted on 10 December 2020.
The First Patrick Declaration provides information on expenditure for marketing and the development of the software. It is also declared that the Opponent’s Trade Mark is being continuously used, with over 60 active users or subscribers of the software.
Evidence in answer
The Applicant’s evidence in answer comprises:
·A declaration by Mark O’Brien, director of the Applicant, made on 17 June 2021 with Exhibits MO-1 to MO-25 (‘O’Brien Declaration’).
The O’Brien Declaration details that the Applicant first became aware of the Opponent’s Trade Mark application on 13 May 2020 and filed for their own trade mark on 27 July 2020, detailed as follows:
Trade mark number:      2106573
Trade mark:   Certifire Australia (‘Applicant’s Trade Mark’)
Filing date:   27 July 2020
Specification:                    Class 9: computer software; application software; computer software applications (downloadable); computer software products; computer software packages; computer software (programs); computer software programs; computer software (recorded); downloadable software applications (apps); computer software programs for database management; computer software platforms, recorded or downloadable; computer software for business purposes; computer programs and recorded software distributed online
The O’Brien Declaration contains submissions disputing statements and evidence in the First Patrick Declaration, including that some of the material is unsupported by evidence, does not demonstrate use of the Opponent’s Trade Mark and also disputing the date/s that the Opponent’s Trade Mark was used.
The O’Brien Declaration includes a screen capture of the Opponent’s website using the Wayback Machine,[2] a webpage archive. This shows that the Opponent’s website referred to a ‘Penetration Register App’ as of 14 March 2019 and that this had subsequently changed by at least 7 March 2020 to feature the Opponent’s Trade Mark.
[2] >
The declaration includes submissions and evidence relating to the Applicant’s adoption and use of the Applicant’s Trade Mark or something resembling it (generally featuring the word CERTIFIRE), including:
·That the Applicant ‘took steps’ to purchase the domain name certifire.com.au on 8 February 2018.
·A memo and email relating to software development, dated 30 August 2018 and 7 September 2018, respectively. These are both discussing some updates or testing of the Applicant’s software. These both include links to website addresses that feature the word CERTIFIRE within them. The Applicant submits this website address was therefore ‘published’ and available to the public at that time, and that this was trade mark use.
·A confidentiality agreement with another company in relation to the development of the Applicant’s software. The declaration submits that this is proof of the software being in development before 2 August 2018.
·An email from the manager of a competing company dated 30 May 2019. This includes a comment from the manager that they were aware of others working on similar products who the Applicant has ‘beaten to the punch’. It also makes comment that the manager of this competing company had in the past tried to register certifire.com.au and certifyre.com.au themselves, but had found they were taken.
·Screenshots of the Applicant’s software some of which are declared as being from 16 and 17 May 2019.
·A certificate of the business name registration for CERTIFIRE AUSTRALIA on 23 February 2018.
·An example of a brochure bearing the word CERTIFIRE which is declared as being created and used since 7 September 2018.
·A statutory declaration from Mark Prior, director of Boss Fire & Safety Pty Ltd, submitted as a ‘leading industry specialist in fire protection’ and a competitor to both parties. In this declaration, Mark Prior states that the Applicant was the first to use the trade mark ‘CERTIFIRE’ in the market. This declaration outlines that they were advised of the Applicant’s software and the name CERTIFIRE in June 2019 via a series of telephone conversations with the Applicant.
The declaration submits that the Opponent knew of the Applicant’s Trade Mark, prior to filing the application for the Opponent’s Trade Mark, and asserts that the Opponent’s Trade Mark was filed in ‘bad faith’ for the following reasons:
·At the date the Opponent claims to have chosen the Opponent’s Trade Mark, the Opponent’s Director, Gina Patrick was a board member and Director of the Fire Protection Association Australia (‘FPA’). FPA is stated to be the national peak body for fire safety who hold an annual awards ceremony. On 17 September 2019 the Applicant submitted a form for consideration of an award and received an email stating they were nominated on 10 October 2019. Furthermore, the Opponent and other companies of which Gina Patrick was a director, were finalists/winners of awards in 2017 and 2018. The Applicant submits that due to these circumstances, Gina Patrick and therefore the Opponent, would have been aware of the Applicant’s Trade Mark use at the time they filed for the Opponent’s Trade Mark.
·The Applicant received a phone call from Gina Patrick on 15 October 2018. Evidence is provided of an email detailing that this phone call took place, which is not disputed. Both parties disagree on what was discussed. In the O’Brien declaration, it is submitted that they discussed the Applicant’s Trade Mark and software.
·As competitors in a niche market, the Opponent would have, or ought to have known of use of the Applicant’s Trade Mark. The Applicant asserts that a reasonable person who had done their due diligence and conducted proper, adequate searches, would have identified use of the Applicant’s Trade Mark in the marketplace prior to filing for their own trade mark.
Evidence in reply
The Opponent’s evidence in reply comprises:
·A declaration by Gina Patrick, made on 25 August 2021 with Exhibits GP-1 to GP-3 (‘Second Patrick Declaration’).
The Second Patrick Declaration states that the Opponent first became aware of the Applicant’s Trade Mark in May 2020, when notified that the Applicant had attempted to file a Notice of Opposition to the registration of the Opponent’s Trade Mark.
The Second Patrick Declaration also seeks to contest parts of the O’Brien Declaration including:
·The details of the phone call between Gina Patrick and Mark O’Brien on 15 October 2018. It is declared that this phone call was in relation to an invitation to an upcoming event and that the Applicant’s Trade Mark and software were not discussed.
·Gina Patrick’s involvement as a board member and Director of FPA. It is declared that Ms Patrick was unaware of the Applicant’s Trade Mark and software during the awards process, does not recall reading the awards shortlist and did not attend that awards night.
Grounds, Onus and Relevant Date
Part 9 of the Act concerns the removal of trade marks from the Register for non-use. Section 92(4)(a) of the Act which was the sole ground nominated by the Applicant in the removal application, relevantly provides:
(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;
...
Section 101 provides me with the discretion to remove the Opponent’s Trade Mark from the Register in respect of any, or all of the Opponent’s Goods. This includes the ability to decline to remove the Opponent’s Trade Mark from the Register, even if the grounds on which the removal application was made are established.[3]
[3] Trade Marks Act 1995 (Cth) s 101(3).
For the nominated ground for removal to be established, I must be satisfied of both of the following:
i)On 1 October 2019 (‘Relevant Date’), the Opponent had no intention in good faith to use or authorise use of the Opponent’s Trade Mark in Australia in relation to the Opponent’s Goods, or to assign the trade mark to a body corporate.
ii)The Opponent did not use the Opponent’s Trade Mark in good faith in Australia in relation to the Opponent’s Goods, at any time before 26 September 2020, being one month before the filing date of the removal application (‘Relevant Period’).
The Opponent bears the onus of rebutting the non-use allegation. The simplest route to rebut the non-use allegation under s 92(4)(a) is to establish good faith use of the Opponent’s Trade Mark in relation to the Opponent’s Goods, during the Relevant Period.[4] Alternatively, the non-use allegation can be rebutted if the Opponent establishes that, on the Relevant Date, they had the intention in good faith to use the Opponent’s Trade Mark in respect of the Opponent’s Goods.[5]
[4] Trade Marks Act 1995 (Cth) s 100(1)(b).
[5] Trade Marks Act 1995 (Cth) s 100(1)(a).
I proceed on the basis that the standard of proof required is the ordinary civil standard based on the balance of probabilities.[6]
[6] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] in respect of oppositions under s 52 of the Act.
Discussion and Reasons
The Opponent seeks to rebut the non-use allegation on the basis that it used the Opponent’s Trade Mark in good faith in Australia, during the Relevant Period in relation to the Opponent’s Goods. A single use during this Relevant Period can be sufficient to rebut non-use.[7]
[7] Taxiprop Pty Ltd v Neutron HoldingsInc [2020] FCA 1565, [101] (O’Callaghan J), referring to Wooly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261, [17] (Drummond J).
Use in the Marketplace
The Opponent has submitted evidence of use of the Opponent’s Trade Mark on its website, social media accounts and in mailouts. Much of this evidence prominently features the Opponent’s Trade Mark being used in relation to some of the Opponent’s Goods, being software relating to fire protection and fire safety.
While specific dates have been declared in relation to this use of the Opponent’s Trade Mark, most of it was captured more recently. Subsequently, the Applicant disputes the date of some of this evidence in its submissions. As such and to avoid unnecessary conjecture, I find the following dated pieces of evidence show use of the Opponent’s Trade Mark within the Relevant Period:
·A screen capture of a LinkedIn post dated 28 May 2020[8]. The screen capture contains multiple trade marks including the Opponent’s Trade Mark in relation to a software application for fire protection and fire safety.
·It is declared that the Opponent’s Trade Mark was used on its website, from September 2019. The screen capture provided prominently features the Opponent’s Trade Mark in the centre of the page, with more use of the Opponent’s Trade Mark and information about the software underneath.[9] While the Opponent’s evidence is not specifically dated, the Applicant has submitted evidence from the Wayback Machine showing this is how the website appeared at 7 March 2020.[10]
[8] First Patrick Declaration, Exhibit GP-1, p8.
[9] First Patrick Declaration, Exhibit GP-1, p2-3.
[10] O’Brien Declaration, Exhibit MO-01. P22-23.
This Wayback Machine evidence shows use of the Opponent’s Trade Mark on the Opponent’s website, in relation to some of the Opponent’s Goods, within the Relevant Period.
The Applicant made submissions in the oral hearing as to whether evidence from the Wayback Machine should be considered. The courts have historically taken a mixed approach to relying upon such evidence, however, recent decisions of the Federal Court suggest that website captures from the Wayback Machine are ‘likely to be a reliable indication of the content of the relevant websites at different points in time’.[11] Earlier judgements that have rejected Wayback Machine evidence have typically done so due to its nature as hearsay.[12] Unlike the courts, I am not bound by the rules of evidence.[13] I find it is reasonable and appropriate to be informed by this evidence here, as it merely corroborates the date of use suggested by other submissions and evidence provided by the Opponent.
[11] See, eg, Dyno Nobel Inc v Orica Explosives Technology Pty Ltd (No 2) (2019) 148 IPR 442 (Burley J) and Pinnacle Runway Pty Ltd v Triangl Ltd (2019) 375 ALR 251 (Murphy J).
[12] See, eg, E & J Gallo Winery v Lion Nathan Australia Pty Limited (2008) 77 IPR 69 (Flick J) and Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 (Mortimer J).
[13] Reg 21.15(4).
I am satisfied that the above examples and other evidence provided by the Opponent, demonstrates use of the Opponent’s Trade Mark in Australia during the Relevant Period in respect of software for the purpose of fire protection and fire safety. However, there is no evidence of use in relation to the other claims for software in the Opponent’s Goods (‘Remainder Goods’). As such, this ground for the Remainder Goods is not successfully rebutted under this limb of s 92(4)(a). I return to my discussion of the Remainder Goods further below.
For now, since there is sufficient evidence of use of the Opponent’s Trade Mark during the Relevant Period for software for fire protection and fire safety, I will consider whether the use in relation to these goods was in good faith.
Use in good faith
A number of submissions have been provided by both parties in relation to good faith under s 92(4)(a) of the Act.
In Woolly Bull Enterprises Pty Ltd v Reynolds, Drummond J stated:
The expression “use in good faith” has a well understood meaning in this context, viz, real, as opposed to token, use in a commercial sense.[14]
[14] [2001] FCA 261, [16].
In Electrolux v Electrix Ltd,[15] a trader created and used a new, similar trade mark to a competitor, for the purpose of strengthening their market position. This was held to be use in good faith, as the trader had been using the trade mark in the marketplace commercially and that use was substantial.
[15] (No 2) (1954) 71 RPC 23 (Sir Evershed MR, Jenkins and Morris LJ).
In Imperial Group Ltd v Phillip Morris,[16] a trader used a “ghost mark” of the word NERIT. The purpose of this was to reserve the trade mark MERIT which was considered too descriptive to be registered. When using the NERIT trade mark, the amount, time, area and advertising support were minimal compared to their other products. This was held to not be in good faith, as the use was not in pursuit of a course of trade and was merely a charade to attempt to get rights over a trade mark they did not own.
[16] Imperial Group Ltd v Philip Morris & Co Ltd [1982] FSR 72 (Lawton, Shaw and Brightman LJJ).

In Edwards v Liquid Engineering, Gordon J stated the following:
… “good faith” for the purpose of s 92(4) requires no more than genuine intent to use a mark for commercial purposes; it does not involve any element of honesty or subjective good intentions: see generally E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2008] FCA 934 at [187]-[192] (examining the meaning of good faith under related provisions of the TMA).[17]
[17] [2008] FCA 970, [8], affd [2009] FCAFC 7, [56] (Tamberlin, Sundberg and Besanko JJ).
When considering the above body of case law, it is clear that good faith for the purposes of this ground requires no more than use of the trade mark for ordinary commercial purposes - generating profit and goodwill. Use of a trade mark specifically for the purpose of blocking a competitor without a commercial desire to use it, or for securing an unregistrable right, are generally purposes and actions which have been found to not be in good faith.
The High Court has held that even a small degree of use can demonstrate and be for a genuine commercial purpose.[18] The quantum of sales or users in the current matter is somewhat unclear. Some of the details provided of users of the Opponent’s software, or views of social media sites are not clearly stated or evidenced as being from within the Relevant Period. Evidence is however, provided demonstrating that the Opponent’s website had around 200 views in March 2020 when it featured the Opponent’s Trade Mark.
[18] E & J Gallo Winery v Lion Nathan (Aust) Pty Ltd [2010] HCA 15, [64] (French CJ, Gummow, Crennan and Bell JJ).
In my opinion, the evidence of the Opponent’s website and social media post demonstrating use of the Opponent’s Trade Mark during the Relevant Period is sufficient to constitute use for genuine commercial purposes. It does not appear to be token use, merely for the purpose of blocking the Applicant or any other competitor. It appears to me, that the Opponent is genuinely providing a product featuring the Opponent’s Trade Mark and is attempting to grow the market for its software commercially through its website and social media posts.
The Applicant has made submissions relating to a decision by Anderson J in Henley Arch Pty Ltd v Henley Constructions Pty Ltd (‘Henley’), where the concept of ‘good faith’ was discussed in relation to a defence to infringement under s 122(1)(a)(i).[19] The test discussed there is that to be acting in good faith, a trader should be acting in accordance with best commercial practices. Knowledge of other traders using the trade mark or an absence of conducting relevant searches to see if others are using a similar trade mark before using, or applying for your own, was held to be outside these best commercial practices. While sharing the same terminology of ‘good faith’, those considerations in Henley relate to an ‘own name defense’ under an infringement matter. These considerations and tests discussed for s 122(1)(a)(i) are more in line with the opposition ground relating to bad faith in s 62A.
[19] [2021] FCA 1369, [739]-[757].
Justice Anderson in Henley did separately consider good faith under s 92(4)(a). It is telling that this part of the judgment does not apply the s 122(1)(a)(i) approach. Instead, an approach is taken considering similar decisions and logic to the body of case law discussed above.[20] No suggestion is made that the ‘best commercial practices’ test for good faith applies to a non-use action. As such I reject the Applicant’s submissions in this regard.
[20] Ibid, [915]-[917].
Many of the submissions and evidence provided by both parties relate to considerations more relevant to other grounds and defences. This includes:
·Submissions and evidence relating to past searches conducted and the likelihood that the Opponent knew of the Applicant’s Trade Mark at the Relevant Date.
·The phone call between Gina Patrick and Mark O’Brien, where the Applicant’s Trade Mark may or may not have been mentioned. As previously noted, each party has a different version of what was discussed during this conversation.
·The annual awards show in which the Applicant’s software was a finalist. This show was run by FPA which Gina Patrick was a director of at the time.
·The Opponent and other companies that Gina Patrick has been a director of, have also won, or been nominated for FPA awards in other years. With the inference that Gina Patrick and therefore the Opponent, would have been aware of other competitors, such as the Applicant winning an award for their software.
It is clear from the decisions previously discussed that for good faith under s 92(4)(a), there is no requirement of honesty or good intention, as long as the use itself is for a genuine commercial purpose.[21] These submissions and evidence that relate to the likelihood of the Opponent’s knowledge of the Applicant’s Trade Mark, are only a relevant consideration here if they can be said to colour the commercial use put forward by the Opponent, as being merely ‘token’ or only for the purpose of blocking a competitor.
[21] Edwards v Liquid Engineering [2008] FCA 970, [8] (Gordon J).
In this instance, I am not satisfied from the submissions and evidence before me, that mere awareness of the Applicant’s Trade Mark, or how the Opponent potentially came to acquire such knowledge of the Applicant’s Trade Mark or software, sufficiently colours the Opponent’s use as not being for a genuine commercial purpose.
The use by the Opponent during the Relevant Period was likely, on the balance of probabilities, to have been for a genuine commercial purpose. Therefore, I find that the Opponent has used the Opponent's Trade Mark during the Relevant Period in good faith on software for fire protection and fire safety
Intention to use at time of filing in good faith
While the ground has been successfully rebutted by the Opponent on software for the purpose of fire protection and fire safety under the limb of 92(4)(a) discussed above, this is not the case for the Remainder Goods. It is therefore necessary to consider whether the Opponent has rebutted the removal allegation for the Remainder Goods under the other limb. As previously stated, the removal allegation can also be rebutted if the Opponent establishes that on the Relevant Date, it had an intention in good faith to use the Opponent’s Trade Mark in respect of the Remainder Goods.
The subject matter that software can concern itself with is already just about all encompassing and is continually growing. Considering all the submissions and evidence provided, including those previously discussed, the intention of the Opponent at the Relevant Date was most likely limited to software for fire protection and fire safety. There is nothing before me that demonstrates a broader intention to use the Opponent’s Trade Mark on software for other purposes. Therefore, I find the Opponent has not successfully rebutted the non-use allegation in relation to the Remainder Goods.
Discretion
As noted, I have a broad discretion not to remove an unused trade mark if satisfied that it is reasonable to do so. The Opponent bears the onus of positively satisfying me that it is reasonable that the trade mark should not be removed.[22]
[22] Austin, Nichols & Co Inc v Lodestar Anstalt [2012] FCAFC 8, [44] (Jacobson, Yates and Katzmann JJ).
The Opponent has not requested an exercise of discretion and there is nothing before me which indicates that it should be exercised in favour of the Opponent, allowing the Opponent’s Trade Mark, in its entirety, to remain on the Register. Furthermore, limiting the Opponent’s Goods would not impair the Opponent’s capacity to continue to use the Opponent’s Trade Mark. I also consider that a very broad claim such as ‘software’, particularly when registered to an apparently specialist entity such as the Opponent, would be hard to justify even if a case had been put forward. As such, I decline to exercise the discretion.
Decision and costs
The Opponent has rebutted the allegation of non-use in respect of software claims for the purpose of fire protection and fire safety. I am not satisfied that it is reasonable to exercise my discretion to allow the Opponent’s Trade Mark to remain registered for all of the Opponent’s Goods. Accordingly, I direct that, one month from the date of this decision, the specification of goods for trade mark registration 2040828 be amended as follows:
Class 9: computer software; application software; computer software applications (downloadable); computer software products; computer software packages; computer software (programs); computer software programs; computer software (recorded); downloadable software applications (apps); computer software programs for database management; computer software platforms, recorded or downloadable; computer software for business purposes; computer programs and recorded software distributed online; all the foregoing being for the purpose of fire protection and fire safety, including certification and compliance
Should the Registrar of Trade Marks be served with a notice of appeal before the amendment of the Opponent’s Trade Mark, I direct that the amendment of the Opponent’s Trade Mark not occur until the appeal has been decided or discontinued, and that any disposition of the removal application be in accordance with the Court’s orders or direction.
Both parties requested an award for costs. The usual rule is that costs follow the event, and there is no reason to deviate from that. As both parties had a degree of success, I decline to award costs in this matter.
Nicholas Butson
Hearing Officer
Delegate of the Registrar of Trade Marks
9 September 2022

[2022] ATMO 156

9 September 2022