Re: Opposition by Shiseido Company, Limited to application under section 92 of the Trade Marks Act 1995 (Cth) by Dr. Kurt Wolff GmbH and Co. KG. to remove trade mark number 1412378 (class 3) -Tuning Color Group
[2020] ATMO 128
•30 July 2020
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONSRe:Opposition by Shiseido Company, Limited to application under section 92 of the Trade Marks Act 1995 (Cth) by Dr. Kurt Wolff GmbH and Co. KG. to remove trade mark number 1412378 (class 3) -TUNING COLOR GROUP - in the name of Shiseido Company, Limited.
Delegate: M. Cooper Representation: Removal Opponent: Baker & McKenzie
Removal Applicant: Griffith HackDecision:
2020 ATMO 128
Trade Marks Act 1995 (Cth) – application under section 92 – Trade Marks Act 1995 (Cth) – s 96 Opposition to application to under s 92(4)(b) – no good faith use or obstacle to use demonstrated in relevant period - Registrar’s discretion under s 101 not exercised - Trade Mark to be removed from the Register.Background
Shiseido Company, Limited (‘Removal Opponent’) is the registered owner of the following trade mark:
Registration 1412378 Trade Mark TUNING COLOR GROUP Filing date 3 March 2011 Goods Class 3: Soaps, perfumeries, and cosmetics; including skin care, hair care, body care, and make-up products (‘Goods’)
On 9 September 2016, Dr. Kurt Wolff GmbH & Co. KG. (‘Removal Applicant’) applied under s 92(4)(b) of the Trade Marks Act 1995 (‘the Act’) to remove the Trade Mark from the Register for non-use in relation to all the goods for which it is registered. A Notice of Intention to Oppose the removal application was filed by the Removal Opponent on 15 November 2016. On 15 December 2016 it filed its Statement of Grounds and Particulars (‘SGP’) however it was found to be inadequate. An amended SGP was filed on 9 January 2017. A Notice of Intention to Defend was filed by the Removal Applicant on 30 January 2017.
Evidence
The evidence filed in relation to this removal opposition comprises:
· Evidence in Support (‘EIS’)
Ø Declaration of Akira Kusakabe, Group Manager of the Removal Opponent’s Trademark Group, dated 7 August 2018, with Annexures AK-1 to AK-4 and confidential Annexure AK-5 (‘Kusakabe Declaration’).
· Evidence in Answer (‘EIA’)
Ø Declaration of Christian Fissbeck-Hoofe the Removal Applicant’s Legal Counsel, dated 11 December 2018, with Annexures A to M (‘Fissbeck-Hoofe Declaration’).
No evidence in reply was filed by the due date. On 2 April 2019[1] IP Australia wrote to the parties advising that they had until 26 April 2019 to request a hearing. If no request was received, the matter would be decided on the filed material. The parties were further advised that they had three months from the 26 April 2019 to file written submissions. There was no request for a hearing and on 1 July 2019 the Removal Applicant filed its submissions. The Removal Opponent filed its submissions on 26 July 2019.
[1] Delays in sending correspondence resulted in the later date for a hearing request.
Threshold issue: late filed evidence
On 2 July 2019, the Removal Opponent filed additional material, requesting that it be allowed into evidence, specifically, invoices referred to in Annexure AK-5 of its EIS but which it had failed to then supply. On 31 July 2019, the Removal Applicant filed submissions objecting to the inclusion of the material.
I note that the Registrar is not bound by rules of evidence and may be informed on any matter as he or she reasonably believes to be appropriate,[2] a primary concern being that all parties have an adequate opportunity to put their case.
[2] Trade Marks Regulations 1995 (Cth) reg 21.15(4).
I have had regard in this context to the Trade Marks Office Manual of Practice and Procedure, in particular, Part 51, paragraph 2.6 which relevantly provides in part:
The delegate will not consider out of time evidence as a matter of routine. The party filing the evidence must make a compelling case in favour of it being considered.
As noted above, the evidence was filed on 2 July 2019, after the conclusion of the evidence stages. The Removal Opponent claimed that the omission of the invoices from its EIS was due to an ‘inadvertent clerical error’ which it had remedied as soon as it had read the Removal Applicant’s 1 July 2019 submissions. The invoices are said to establish sales under the Trade Mark and to be crucial to this decision because they demonstrate genuine commercial use of the Trade Mark in the relevant period. The Removal Opponent further contended that inclusion of the invoices is in the public interest in a decision being made on all the relevant evidence. Overall, given the importance of the evidence, the circumstances surrounding ‘its unfortunate and inadvertent omission’ and the substantial adverse consequences to the Removal Opponent of its exclusion, the Removal Opponent submitted that there was a compelling case for its inclusion.
The Removal Applicant submitted that it would be a denied natural justice if the evidence was included because it had not been given an opportunity to consider it when preparing its EIA or its submissions. In any event it claimed the material had no probative value because it contained no reference to the Trade Mark and, demonstrating only negligible sales figures, did not establish any reputation in the Trade Mark.
In relation to the reasons for the late filing, I am not persuaded that there is anything compelling about an ‘inadvertent clerical error’, particularly in circumstances where the Removal Opponent was required to refile the Kusakabe declaration, thereby affording it an opportunity to revisit and recheck it. The Removal Opponent then also claimed that the error identified was ‘inadvertently omitted’.
The evidence sought to be admitted shows a group of invoices from the Removal Opponent to its Australian distributor over the relevant period[3] however, as the Removal Applicant observed, they do not show use of the Trade Mark. On the face of it, I consider they have limited probative value. Nevertheless, given the public interest in ensuring a full consideration of all the relevant evidence, I am satisfied this constitutes a compelling reason for their inclusion. Given my conclusions below, I did not consider it necessary to provide the Removal Applicant with another opportunity to comment.
[3] See paragraph 21 below.
Evidence in Support
The Kusakabe Declaration states that the Removal Opponent has used the Trade Mark on a specific range of hair colouring products within its PRIMIENCE category in the SHISHEIDO PROFESSIONAL range that have been sold by its Australian distributor since ‘at least’ April 2015. He notes the product codes for individual products within the TUNING COLOR GROUP shown on annexed product guides and colour charts. These are said to be supplied to purchasers of PRIMIENCE products, the main market for which is hair care professionals and salons which, he speculates ‘may be shown’ to salon customers. Current and historical screenshots from the websites of the Removal Opponent and the Australian distributor are annexed which feature the Trade Mark. In particular, Annexure AK-5 is said to show copies of invoices from the Removal Opponent to its Australian distributor showing product codes which the Removal Applicant maintains make it ‘clear that the highlighted products have been sold under the Trade Mark’ in the relevant period. Based on this evidence, the Kusakabe declaration claims to have demonstrated good faith use of the Trade Mark in the relevant period. Alternatively, although not in the nature of evidence, he requests the exercise of the Registrar’s discretion to decline to remove the Trade Mark.
Evidence in Answer
The Fissbeck-Hoofe declaration notes that the Removal Applicant is part of the Dr Wolff Group of companies which specialises in ‘the research, development and marketing of skin, hair and personal care products and preparations.’ He refers specifically to the Alpecin brand as ‘the first cosmeceutical hair and scalp tonic’ which is a market leader and ‘among the best-recognized German consumer brands’ launched in Europe, Asia and Pacific. In particular he refers to the launch of the TUNING range of products in 2011 under the ALPECIN brand as ‘a new and innovative caffeine-containing product’ and annexes images of various TUNING branded products. They are said to have been first launched in Australia in 2016 and confidential details of Australian and worldwide sales figures for 2011-2018, extensive advertising, promotional activities and sponsorships are annexed. Trade Mark registrations in several countries for TUNING products are also listed. The declaration notes the Removal Applicant’s Australian applications for trade mark registration for its TUNING products[4] are subject to examiners’ objections based on the presence of the Trade Mark on the Register. Fissbeck-Hoofe claims the Removal Applicant needs to protect its valuable reputation and therefore the Trade Mark should be removed from the Register to prevent confusion in the marketplace.
[4] See Australian trade mark applications: 1798386 (TUNING Shampoo), 1843965 (TUNING Crème) and 1907784 (Tuning)
Onus
In respect of the proceedings under s 92(4)(b), s 100 of the Act provides that the Removal Opponent bears the onus of rebutting the allegation of non-use. The relevant standard of proof is on the balance of probabilities.[5]
[5] Blount Inc v Registrar of Trade Marks (1998) 40 IPR 498 [504].
Legislation
Section 92 of the Act relevantly provides as follows:
92 Application for removal of trade mark from Register etc.
(1) Subject to subsection (3), a person may apply to the Registrar to have a trade mark that is or may be registered removed from the Register.
(2) The application:
(a) must be in accordance with the regulations; and
(b) may be made in respect of any or all of the goods and/or services in respect of which the trade mark may be, or is, registered.
(3) An application may not be made to the Registrar under subsection (1) if an action concerning the trade mark is pending in a prescribed court, but the person may apply to the court for an order directing the Registrar to remove the trade mark from the Register.
Note: For prescribed court see section 190.
(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:
[...]
(b) that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the nonuse 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.If the Removal Opponent establishes its good faith use of the Trade Mark, (or the Trade Mark with additions or alterations not substantially affecting its identity), or that there was a relevant obstacle to its use during the 3 year period ending one month before the removal application date of 9 September 2016, it is taken to have rebutted the allegation of non-use: s 100(3). In relation to the type of evidence that would be sufficient to establish trade mark use, ‘the tribunal may not be persuaded by evidence that is solely from the internal files of the opponent’[6] or of a circumstantial nature.[7] Little weight is to be given to assertions of use which are not supported by documentary evidence[8] however a single instance of bona fide use in the relevant period will suffice[9].
[6] Re Nodoz Trade Mark [2961] RPC 1
[7] Trina Trade Mark [1977] RPC 131
[8] Great White Shark Enterprises Inc v Joose Apparel Pty Ltd [1998] ATMO 8
[9] Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 [14-17].
Removal Opponent’s submissions
The Removal Opponent submits in summary that the Trade Mark is not a descriptor but acts as an identifier for the Removal Opponent’s premium ranges of hair colouring products for professionals, each product having a clear product code which functions as a descriptor (e.g. G4, G5, G7, G8, G9, G13 etc.). It further contends that the Trade Mark’s depiction with capitalised initial letters and use ‘with embellishments such as a border render it distinct from the surrounding words and text. These embellishments emphasize the mark compared to the remaining content and convey a trade mark significance. Objectively therefore the mark TUNING COLOR GROUP primarily performs the function of a trade mark.’ Use is also said to be demonstrated in marketing collateral such as product guides and colour charts in which, objectively viewed, it performs the function of a trade mark. In addition, as a coined phrase, it would be perceived as a badge of origin. The truncation of the Trade Mark to ‘Tuning Color’ is said to be an alteration that did not substantially affect the identity of the Trade Mark (s 7(1)). It further submitted that the evidence also established significant sales.
In relation to the Goods, the Removal Opponent relies on a definition from the Australian Department of Health and the National Industrial Chemicals Notification and Assessment Scheme (which regulates cosmetic products and cosmetic ingredients in Australia) and which defines ‘a cosmetic’ as including hair dye. It contends that hair colouring products ‘are widely regarded as cosmetics’.
Removal Applicant’s submissions
In summary, the Removal Applicant submits that there is no conclusive evidence showing that the Removal Opponent has used the Trade Mark ‘in the course of trade’ and ‘in Australia’, or that it the use has been ‘as a trade mark’. Furthermore, the Removal Opponent has not satisfied the onus to prove use in respect of the Goods, having relied only its use in relation to hair colours. Noting various dictionary definitions, the Removal Applicant further contends that “hair colours” are not hair care products in the nature either of soaps, perfumeries or cosmetics.
Analysing the various exhibits, the Removal Applicant contended that the only ‘brands’ that consumers see in these documents are ‘SHISHEIDO’ and ‘PRIMINENCE’. No consumer would understand the uses of the small and insignificant words Tuning Color [Group] or Multi Color [Group] to be ‘brands’ that distinguish one trader’s goods from those of another. Rather, the context necessitates that consumers would understand the uses of the words to be as descriptions of a group of hair-dye colours. In relation to the invoices (AK-5), they only show sales by reference to a product number, not the Trade Mark.
Consideration
There is no evidence of any action concerning the Trade Mark pending in a court (s 92(3)). Based on the available records, the Trade Mark has been registered since 3 March 2011, that is, it has remained registered for a continuous period of 3 years ending one month before the day on which the non-use application was filed (s 92(4)(b)). It is also self-evident that it has been over 5 years since the filing date of the application for registration (s 93(2)).
As noted above, the Removal Applicant sought that the Trade Mark be removed under s 92(4)(b) for non-use for all the Goods for which it is registered. The period of non-use was asserted to be from 9 August 2013 to 9 August 2016, that is, the three years ending one month prior to the filing of the non-use application on 9 September 2016 (‘the relevant period’).
I make the following observations regarding the Removal Opponent’s evidence of use:
· While Annexures AK-1 and AK-2 show use of the ‘Tuning Color Group’ in various brochures and product guides, these are undated and there is no evidence they were used or available in Australia. They therefore do not establish Trade Mark use in the relevant period.
· The Wayback Machine extracts in Annexure AK-3 show use of the ‘Tuning Colour Group’[10] in screenshots on three dates during the relevant period from the Australian distributor’s website. There is no evidence that this use was authorised within the meaning of s 8 of the Act or that any relevant relationship existed between the Removal Opponent and its distributor[11]. Even if the use is authorised, as the Removal Applicant observed, the Trade Mark is used in conjunction with, and similarly to, the other descriptor, Multi Colour Group, being another group of hair-dye colours. Both phrases appear on those pages under the SHISHEIDO PROFESSIONAL PRODUCTS, PRIMIENCE brands. PRIMIENCE is described as ‘comprised of the.. Multi-Colour Group..[and] .. Tuning-Colour Group ..’. They are variously described as ‘the two colour groups’ and ‘a set of colours’. For reasons further discussed below, I am not satisfied that this use constitutes use of the Trade Mark as a trade mark.
· Annexure AK-4 includes screenshots of the similar page/s from the Removal Opponent’s website on over the period 25 April 2015 to 8 July 2016. As the Removal Applicant observed, there is no evidence ‘that any Australian customer ever interacted with the global website, or engaged ‘in trade’ upon viewing the Trade Marks on the website. As stated in Ward Group Pty Ltd v Brodie & Stone PLC, the appearance of a trade mark on the internet, uploaded on a website outside Australia, is not, without more, use of the trade mark by the website proprietor in each of the jurisdictions where the mark is downloaded’.[12] There is no evidence that the use was specifically intended to be made in, or directed or targeted at, Australia. Even if it was, I am not satisfied the use demonstrated was trade mark use. The presentation of the Trade Mark in the Removal Opponent’s product guides and colour charts, that is, its claimed prominent positioning, capitalised initial letters and use with embellishments such as a border, were said to render it distinct from the surrounding words and text and convey a trade mark significance. I consider this submission considerably conflates the Trade Mark’s presentation. In the evidence it appears in the same manner as the ‘Multi Color Group’, in small font, (albeit with initial capital letters) within several pages of text, sometimes in a box next to ‘Multi Color Group’ with the coded colours under each colour group. There is nothing distinctive about the Trade Mark’s presentation. There is no indication that the Trade Mark appears on any goods, rather these website extracts show the brands ‘PRIMIENCE’ and in smaller print ‘SHISEIDO Professional’ on the products. This use contrasts with the presentation of PRIMIENCE ENRICH, also a color cream, but which clearly appears on the product as a separate brand name. Overall, the evidence does not establish the Trade Mark’s use in a branding or distinguishing role. It is PRIMIENCE which dominates the web pages and indicates the trade source of the hair colours to the consumers. ‘Tuning Color Group’ and ‘Multi Color Group’ operate to describe the different colours available for sale within the PRIMIENCE range. In this context I consider it more likely that consumers would understand that PRIMIENCE is the trade source of the hair colours and that the Multi and Tuning Color Groups operated to describe or delineate between the different colours available for sale within it. They do not function to distinguish the Opponent’s goods from the goods of others, and nor do they indicate a connection in the course of trade between the Goods and the Opponent. For these reasons, I am not satisfied that the evidence of use of ‘Tuning Color Group’ or ‘Tuning Colour Group’ in Annexures AK-3 or AK-4 constitutes trade mark use.
· Annexure AK-5 comprises 7 invoices, dated from 13 April 2015 to 1 July 2016, from the Removal Opponent to its Australian distributor, EKI Pty. Ltd. They each show the PRIMIENCE trade mark with, relatively, very few references to product codes shown in the charts for the Tuning Color Group. They do not show use of the Trade Mark. While the Removal Opponent maintains these demonstrate sales under the Trade Mark by virtue of the ability to connect them back to the Trade Mark, it seems to me that they could be said equally to demonstrate the converse. That is, that the goods are ordered by reference to the product code, not the Trade Mark.
[10] ‘Colour’ is spelt with a ‘u’ on the Australian distributor’s website. I am satisfied that such use constitutes use of the Trade Mark with additions that do not substantially affect its identity (s 7(1)).
[11] Trident Seafoods Corporation v Trident Foods Pty Ltd [2019] FCAFC 100 [45].
[12] Ward Group Pty Ltd v Brodie & Stone PLC [2005] FCA 471 [43].
Given my above findings it is unnecessary to determine whether the use of the Trade Mark for hair colours is the same as ‘hair care’ as designated. Furthermore, there is no evidence of Trade Mark use for ‘soaps, perfumeries, and cosmetics; including skin care, body care, and make-up products.’
For the above reasons I am not satisfied that the Removal Opponent has demonstrated either its good faith use of the Trade Mark (or use with additions or alterations that did not substantially affect its identity) in the relevant period in relation to the Goods or established that there were circumstances which were an obstacle to its use (s 100(3)(a) and (c)).
There is no evidence or claim that the mark was relevantly assigned for the purposes of s 100(3).
It follows that I am not satisfied the Removal Opponent has rebutted the Removal Applicant’s allegation of Trade Mark non-use under s 92(4)(b). Therefore, the ground on which the removal application was made has been established: s 101(1).
Registrar's discretion
Even where grounds for removal have been established, s 101(3) of the Act provides that, if the Registrar or the court is ‘satisfied that it is reasonable to do so’, it may decide the trade mark should not be removed from the Register.
The Removal Opponent relies on the relevant considerations identified in Austin, Nichols & Co Inc v Lodestar Anstalt (‘Lodestar’) [13]and E & J Gallo Winery v Lion Nathan Australia Pty Ltd (‘Gallo Winery’)[14], submitting that, given the evidence of Trade Mark use in Australia and its continuing use in Australia and overseas, the absence of any evidence suggesting an intention to abandon the Trade Mark, its reputation and the confusion which is likely to be caused by removing the Registration, it is reasonable not to remove the Trade Mark from the Register.
[13] (2012) 202 FCR 490; [2008] FCA 934 [31-38].
[14] (2008) 77 IPR 69; [2008] FCA 934 at [209].
The Removal Applicant disputed that there was any reputation in the Trade Mark noting the appeal court’s comments in Lodestar where the discretion was not exercised because ‘whatever reputation the [registered owner’s] mark acquired, it is slight, not long established, and unlikely to have had any significant impact.’[15] It contended that, as there is no reputation in the Trade Mark, there can also be no likelihood of confusion if the Trade Mark is removed for all the Goods. It further contended that the only goods sold are hair dyes which are not the registered Goods or similar to them and the Removal Opponent had not demonstrated it has any real commercial interest in maintaining the registration for the Goods. In contrast, it submitted, the commercial interests of the Removal Applicant will be adversely affected because it will be unable to register its TUNING trade marks[16], which have been used internationally for several years, including in Australia, as demonstrated by its significant sales and advertising expenditure. Because the public associates TUNING with the Removal Applicant, it submitted that removing the Trade Mark is in the public interest and will protect the Removal Applicant’s strong reputation.
[15] (2012) 202 FCR 490; [2012] FCAFC 8 [70].
[16] See footnote 4
The applicable principles, as stated by Flick J in E & J Gallo Winery v Lion Nathan Australia Pty Ltd[17] and as adopted in Optical 88 Limited v Optical 88 Pty Limited (No.2)[18], require that ‘the discretion under s 101(3) is not conditioned on the need to establish “exceptional circumstances” before the discretion can be exercised favourably to the trade mark owner’ but that it requires the Court or the Registrar to be ‘positively satisfied’ it is reasonable to do so and ‘it is the opponent for removal who bears the burden of persuasion on that issue’.[19]
[17] [2008] FCA 934 [193-213].
[18] [2010] FCA 1380 [273].
[19] Ibid.
In Gallo Winery Flick J applied the five (non-exhaustive) factors listed by Falconer J in Hermes Trade Mark [1982] RPC 425 for consideration in the exercise of the discretion, as follows:
• there had been no abandonment of the trade mark;
• the registered proprietors of the mark still had a residual reputation in the mark;
• there had been sales by the registered proprietors of goods for which removal was sought since the relevant period ended;
• the applicants for removal had entered the market without having taken steps to ascertain from the Register whether anyone had a right to exclude their use of the mark;
• the registered proprietors were not aware of the applicant’s sales under the mark.[20]
[20] Gallo Winery [202]
The latter two factors are not relevant in the circumstances of this application. In relation to the others, the Trade Mark has not been abandoned, but there is no reliable evidence of any residual reputation or sales since the relevant period ended.
Additional and similar factors were also considered Lodestar. The Full Federal Court, although overturning Cowdroy J’s decision, agreed with the factors he had listed as relevant (but not determinative of) the issues.[21] These additional factors include evidence of the international profile of the owner’s product; the owner’s clear intention to use the trade mark in the future; the absence of any evidence concerning ‘the prospect of confusion …nor of any public mischief’ if the trade mark remained on the register; and the possibility that removing the trade mark may cause a degree of confusion to the public as a consequence of its use in Australia and internationally.[22]
[21] Austin, Nichols & Co Inc v Lodestar Anstalt (2011) 202 FCR 462; Austin, Nichols & Co Inc v Lodestar Anstalt (2012) 202 FCR 490; 287 ALR 221; [2012] FCAFC 8 [9-12].
[22] As summarised in Davison M and Horak I, Shanahan’s Australian Law of Trade Marks and Passing Off (Thomson Reuters (Professional) Australia Limited, 6th ed, 2016) 70.2515
In consideration of those factors and the Removal Opponent’s circumstances, there is no substantiated evidence of any international profile for the Trade Mark. While the Removal Opponent maintains it has and will continue to use the Trade Mark, given that the use identified is not established to be trade mark use, I attach little weight to this factor. While there is no indication of any public mischief if the Trade Mark remains on the Register, there is correspondingly no evidence or claim of any market confusion which might arise, either in Australia or internationally, if it is removed. The Removal Opponent has not produced any objective evidence of how its interests, economic or otherwise, might be affected by removal. On the contrary, if the Trade Mark remains on the Register, the Removal Applicant’s commercial interests will clearly be adversely affected because it will be unable to register its TUNING trade marks, for which it has produced significant evidence of reputation and sales in Australia and internationally.
Section 101(4) of the Act provides that one of the factors which may be considered under section 101(3) is whether the Opponent has made use of the registered Trade Mark on similar goods or closely related services; or similar services or closely related goods. There is no such claim or any evidence of such use.
As noted above, it is the Removal Opponent which bears the onus of satisfying the Registrar that the discretion under s.101 ought to be exercised[23]. While acknowledging the broad discretion available under s.101(3), having carefully considered all the claims and material before me, I am not satisfied in all the circumstances of this matter that it is reasonable to exercise the discretion not to remove the Trade Mark.
[23] Optical 88 Limited v Optical 88 Pty Limited (No. 2) (2010) 275 AR 526; [2010] FCA 1380 [273].
Decision
Section 101 of the Act relevantly provides:
101 Determination of opposed application--general
(1) Subject to subsection (3) and to section 102, if:
(a) the proceedings relating to an opposed application have not been discontinued or dismissed; and
(b) the Registrar is satisfied that the grounds on which the application was made have been established;
the Registrar may decide to remove the trade mark from the Register in respect of any or all of the goods and/or services to which the application relates.
As the Removal Opponent has not rebutted the allegation of non-use, the ground for removal has been established. It follows that the application for removal of the Trade Mark in respect of all the goods for which it is registered, has been successful.
I direct that the Trade Mark be removed from the Register after one month from the date of this decision. If the Registrar is served with a notice of appeal on or before that time, the registration will not be amended or removed unless the appeal is withdrawn or discontinued. Otherwise, the registration will be subject to the decision of the Court.
Costs
Both parties sought costs. As the Removal Applicant has been successful, I award costs against the Removal Opponent under section 221 of the Act in the amounts set out in Schedule 8 of the Trade Mark Regulations 1995
Mary-Ann Cooper
Hearing Officer
Oppositions and Hearings
Trade Marks and Designs30 July 2020
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