Re: Opposition by Swole Gym Wear Group Pty Ltd to registration of trade mark application 1859774 (25) - Swollen Society- in the names of Evan Berard and Mark Tucker

[2020] ATMO 180

TRADE MARKS ACT 1995

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

Re:Opposition by Swole Gym Wear Group Pty Ltd to registration of trade mark application 1859774 (25) – SWOLLEN SOCIETY– in the names of Evan Berard and Mark Tucker

Delegate:

Nicholas Smith

Representation:

Opponent: Self-represented

Applicant: Self-represented

Decision:

2020 ATMO 180

Trade Marks Act 1995 (Cth) - Section 52 opposition: ss 44 and 62A considered – neither established – trade mark to proceed to registration

Background

1. This decision concerns an opposition brought by Swole Gym Wear Group Pty Ltd (‘Opponent’) pursuant to s 52 of the Trade Marks Act 1995 (Cth) (‘Act’) to the registration of the trade mark which is the subject of the application detailed below in the names of Evan Berard and Mark Tucker (‘Applicant’): 

Application Number:	1859774
Filing Date:	25 July 2017
Goods:	Class 25: Apparel (clothing, footwear, headgear); Clothing; Sports clothing (other than golf gloves); Athletic clothing; Tank tops; Jumpers (sweaters); Gym shorts; Hats; T-shirts (‘Applicant’s Goods’)
Trade Mark:	SWOLLEN SOCIETY	(‘Trade Mark’)

2.  Following the advertisement on 21 December 2017 in the Australian Official Journal of Trade Marks of the Trade Mark’s acceptance for possible registration, the Opponent filed a Notice of Intention to Oppose on 11 January 2018.  The Opponent then filed a Statement of Grounds and Particulars on 7 February 2018 (‘SGP’). The SGP raised grounds of opposition under ss 44 and 62A of the Act. The Applicant filed a Notice of Intention to Defend on 14 March 2018.

Evidence

1. The Opponent filed the following evidence in support of its opposition:

   ·Declaration made on 8 September 2018 by Derrick Murphy, the Owner and Director of the Opponent, with Attachments 1 to 10 (‘Murphy 1’).  I note that much of the material in Murphy 1 consists of extracts from legislation and submissions and will be treated as such.

   4.  The Applicant filed the following evidence in answer:

   ·Declaration made on 10 October 2018 by Evan Mead Berard, one of the Applicants, with Attachments 1to 4 (‘Berard declaration’).  Like Murphy 1, much of the Berard Declaration consists of submissions and not evidence and will be treated as such.  

2. The Opponent filed the following evidence in reply:

   ·Declaration made on 10 January 2019 by Derrick Murphy, with Attachments 1 to 2 (‘Murphy 2’).  Like Murphy 1, much of the Murphy 2 consists of submissions and not evidence and will be treated as such.

3. The evidentiary process in this matter did not proceed according to the normal timeline.  The Opponent initially filed its evidence in support late, with this office at first indicating that it would refuse an extension of time.  Following the provision of further evidence in support of its application to extend the time to file its evidence in support, this office granted the extension of time the Opponent sought. 

4. The Applicant filed its evidence in answer prior to the extension of time being granted, following which the Opponent filed evidence in reply.  This office then notified the Applicant that its evidence in answer was filed too early (as the evidence in support had not been accepted).  Following a failure by the Applicant to refile its evidence in answer in the three month period after the evidence in support had been accepted, this office indicated by letter dated 21 June 2019, that the evidence in answer was filed out of time, and absent any decision by the Hearing Officer to consider the out of time evidence, neither the evidence in answer and/ or evidence in reply would be considered.  The Opponent wrote to this office on 12 July 2019, requesting that its evidence in reply be taken into account.

5. The Trade Mark Examiners Manual at Part 51, paragraph 2.6 provides a summary of considerations for the Delegate when deciding to have regard to out of time evidence (albeit this normally applies to evidence filed late, not as in this case, evidence filed early).  The considerations are stated below:

   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.

   Nevertheless, there may be instances where the failure to consider that evidence is not in the public interest of the register being a true reflection of the marketplace. It is also undesirable if the true owner of a trade mark at common law is unable to prevent it being registered by another party.  The Registrar acknowledges that sometimes it may be appropriate for the delegate deciding the merits of the opposition to take the information contained in evidence filed out of time into account.  The delegate may do so as he or she is not bound by the rules of evidence, but may be informed on any matter in a way that he or she reasonably believes to be appropriate (reg 21.15(4)).

   The issues the filing party needs to address in its submissions include:

   ·     Why the evidence was filed after the due date

   ·     If the evidence stage in proceedings has concluded and the matter is ready for determination, why the evidence was not filed earlier

   ·     What the evidence shows

   ·     Why that information is crucial to the delegate’s decision

   ·     Why it is in the public interest to have the information considered

   ·     What is the balance of convenience for the parties if the information is considered.

6. This is a textbook case where it is appropriate to have regard, under the provisions of reg 21.15(4) of the Trade Mark Regulations 1995 to the out of time evidence in answer (and hence the evidence in reply).  The evidence in answer was filed within 3 months of the date Opponent’s evidence in support was filed, and was only deemed out of time by reason of a delay in determining whether the Opponent’s evidence in support was admissible.  Admission of the evidence in answer does not delay the proceedings, and it is in the interests of both the parties and the public more generally to allow consideration of the full set of evidence (evidence in support, evidence in answer and evidence in reply) filed by the parties in this case.  I shall consider the evidence in answer and evidence in reply in this decision.

   10.     Once the time allowed for filing evidence had ended the parties were given an opportunity to request a hearing or to file written submissions.  By letter issuing from IP Australia on 29 July 2019 the parties were notified that as a hearing had not been requested the matter would be given to a delegate of the Registrar for a decision based on the written record.  The letter indicated that the parties had three months from the date of the letter to file any written submissions upon which they wished to rely.  Neither party filed any submissions in response to that letter.  

   11. I am a delegate of the Registrar of Trade Marks and I am to decide the opposition as required by s 55 of the Act 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

7. The Opponent is an Australian company that appears, though the information in Murphy 1 is limited, to sell apparel to a clientele interested in gym and bodybuilding.  

   13.     The Opponent is the owner of the trade marks listed below (‘Opponent’s Trade Marks’).  The goods for which the Opponent’s Trade Marks are registered are collectively referred to as the ‘Opponent’s Goods’. 

Number	Trade Mark	Priority Date	Goods
1379762	Swol (‘Swol Mark’)	25 Aug 2010	Class 25: Apparel (clothing, footwear, headgear); athletic clothing; casual clothing; clothing for sports
1610881	Swole (‘Swole Mark’)	12 Mar 2014	Class 25: Apparel (clothing, footwear, headgear); athletic clothing; casual clothing; clothing for sports

14.     The relevant claims/statements in Murphy 1 can be summarised as follows:

·     The words ‘Swol’ and ‘Swole’ are variants of the term ‘swollen’ with the same meaning.

·     The Applicant when it brands its goods, places less emphasis on the word ‘society’ than the word ‘swollen’.  The Applicant also uses an acronym that could be seen to be similar to the Opponent’s SWOL Mark.

·     The Applicant and Opponent corresponded in 2016, with the Opponent advising the Applicant that their products were potentially infringing its trade marks.

15.     The attachments to Murphy 1 include screenshots from both the Applicant’s and Opponent’s websites, indicating that each business sells muscle t-shirts and similar apparel. 

16.     Murphy 2 consists mostly of submissions however it does include further extracts from the Applicant’s online presence, showing use of the Applicant’s products for body building, and encloses a comparison between the Applicant’s and Opponent’s singlet products.

The Applicant

1. The Applicant is a partnership between two individuals involved in selling men’s and women’s life apparel.  The Berard Declaration provides very little information about the Applicant’s business.  Rather it makes submissions that the Trade Mark is not deceptively similar to the Opponent’s Trade Marks because the visual impact, typeface, style, design and pronunciation of the respective marks are dissimilar.

2. The Berard Declaration suggests that the Opponent and Applicant sell their products through different trade channels and that the deponent has not received any evidence of confusion.

   19.     The Annexes to Berard Declaration include further photographs of the Applicant’s and Opponent’s products displaying the Trade Mark and Opponent’s Trade Mark. 

   Grounds of Opposition, Onus and Standard of Proof

3. As indicated above in the SGP the Opponent nominated grounds of opposition under ss 44 and 62A of the Act. To successfully oppose the application the Opponent needs to establish one of the nominated grounds.

   21.     The onus of proof in an opposition rests upon the Opponent.[1]  The relevant standard of proof is the ordinary civil standard based on the balance of probabilities.[2]  The date at which the rights of the parties are to be determined is 25 July 2017 (‘relevant date’), being the priority date of the application in Australia.[3]

   [1] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32].

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

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

   Discussion

   Section 44

4. The relevant provisions of the Act with respect to the ground of opposition pursuant to 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)…

   (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.

   23. To successfully oppose the application pursuant to s 44 of the Act the Opponent must establish the requirements of s 44(1), 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 (‘the third requirement’).

5. 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) of the Act, 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.

6. The Opponent has particularised the ground of opposition in the SGP by reference to the Opponent’s Trade Marks.  Each of the Opponent’s Trade Marks has a priority date that is earlier than the priority date of the Trade Mark.  Each of the Opponent’s Trade Marks is registered for apparel and goods that can be categorized as apparel.  The same can be said for the Trade Mark.  The first and third requirements are satisfied.

   Substantially identical and/or deceptively similar

7. I will now consider whether the Trade Mark is substantially identical to either of the Opponent’s Trade Marks.  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.[4]

   [4] (1963) 109 CLR 407, 414.

   27.     The Trade Mark and the Opponent’s Trade Marks are set out below:

   SWOLLEN SOCIETY    Swol    Swole

   28.     On a side by side comparison there are clear differences between the respective trade marks, indeed the only common element is the shared use of the first four letters ‘swol’ in similar (though not identical) font and format.  The differences between the respective trade marks are sufficient for me to conclude that the respective trade marks are not substantially identical.  I move then to consider whether the Trade Mark and Opponent’s Trade Marks are deceptively similar.

   29.     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].[5]

   [5] Ibid [13].

   30.     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[6] at [49]; Australian Woollen Mills[7] 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[8] 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[9] 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].[10]

   [6] Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020.

   [7] Australian Woollen Mills Ltd v FS Walton & Co Ltd [1937] HCA 51; (1937) 58 CLR 641.

   [8] Crazy Ron’s Communications Pty Ltd v Mobileworld Pty Ltd [2004] FCAFC 196; (2004) 209 ALR 1.

   [9] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592.

   [10] [2012] FCA 1022, [38]-[46].

   31.     The Swol Mark is wholly contained within the Trade Mark.  This alone is not sufficient to make the trade marks deceptively similar.  In some cases, a trade mark conveys an overall conceptual meaning sufficiently different from another trade mark which is contained within it, such that the trade marks are not deceptively similar. This was found to be the case in, for example, REBELLION vs SOUL REBELLION[11] and JOCKEY vs THROTTLE JOCKEY.[12]    There are a number of factors that are relevant to this consideration, including most importantly, whether the additional element changes the idea and impression of the mark as a whole.

   [11] Chris Kingsley v David Scott [2011] ATMO 20.

   [12] Jockey International Inc v Darren Wilkinson [2010] ATMO 22.

1. Both the Opponent’s Trade Marks consist of slang terms that describe a person who is muscular and well built, hence they are commonly used in the gym and athletic industry.  The term swollen is the past participle of the verb swell, which refers to becoming larger and rounder in size.  While the slang terms ‘swol’ and ‘swole’ are derived from ‘swollen’ as they refer to an individual becoming larger, I am not persuaded, and there is no evidence before me to establish this, that the term ‘swollen’ (as distinct from ‘swol’ or ‘swole’) is in common use to describe a muscular person; i.e. a muscular person would be described as swol or swole, but not swollen.

2. Given that conclusion I find that the Trade Mark and the Opponent’s Trade Marks have distinctly different meanings, the former meaning referring to a society that is swollen while the latter referring to an individual who is muscular.  In addition, although each of the marks shares the common first element ‘swol’ the Trade Mark adds the suffix ‘len’ and the second word ‘society’ which results in a mark that is aurally and visually distinctive.  In short, while the marks share the element ‘swol’ they are pronounced differently, look different and are conceptually different, with the Trade Mark referring to a society and the Opponent’s Trade Marks referring to an individual characteristic.  

3. I find that as a result of the significant visual, aural and conceptual differences between the marks when considered as a whole, even allowing for imperfect recollection, it is unlikely that the use of the Trade Mark will deceive or cause confusion because of any similarity it has to either of the Opponent’s Trade Marks. 

   Section 62A

4. Section 62A of the Act is reproduced below:

   62A Application made in bad faith

   The registration of a trade mark may be opposed on the ground that the application was made in bad faith.

5. The Explanatory Memorandum to the Trade Marks Amendment Bill 2006 provided some non-exhaustive examples of applications made in bad faith:

   ·persons who monitor new property developments, register the names of new developments as trade marks for a number of services and then threaten the property developers with trade mark infringement proceedings unless the developers licence or buy the trade marks;

   ·persons who have a history of applying for trade marks that are deliberate misspellings of other registered trade marks;

   ·persons who identify trade marks used overseas but with no Australian use as yet who then apply to register the trade marks in Australia for the express purpose of selling them to the overseas owners.

6. The case of Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) is a current leading Australian authority on s 62A. In that case, Dodds-Streeton J made the following comments, quoting from Harrison’s Trade Mark Application[13]:

   [13] [2004] EWCA Civ 1028; [2005] FSR 10.

   Clearly the court, when considering bad faith, cannot apply a purely subjective test, called by Lord Hutton ‘the Robin Hood test’. The dishonest person or one with low standards cannot be permitted to obtain trade mark registrations in circumstances where a person abiding by a reasonable standard would not. The registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading. Registration is not provided to help those with low moral standards.

   … The words ‘bad faith’ suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.[14]

   [14] [2012] FCA 81, [147].

7. Her Honour continued later in the same decision:

   The formulation in United Kingdom authority of bad faith as falling short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in a particular area is, in my view, an apt touchstone. An overly literal application may, however, tend to negate the relevance attributed to the applicant’s mental state in the combined test preferred in Harrison.

   Further, in my view, mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice, as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand or unconscientious character.[15]

   [15] Ibid [165]-[166].

8. The Opponent has particularised this ground of opposition in the SGP as follows:

   The owner of Swollen Society (the Applicant) was contacted by the owner of the Swole Gym Wear Group Pty Ltd (the Opponent) on 1 August 2016 to advise that their products were potentially breaching trademarks owned by the Opponent. The owners and directors of the Applicant had therefore been aware for some 11 months prior to applying for their own trademark that their products were substantially identical or deceptively similar to those of the Opponent. It shows bad faith to continue to register a trademark in the knowledge that the Opponent had legal rights to the trademark.

9. The onus is on the Opponent to establish bad faith and it will not be found easily given the serious nature of the allegation.[16] The mere fact that the Applicant was aware of the Opponent is an insufficient basis to find bad faith. Based on the evidence before me I cannot conclude that the decision of the Applicant to adopt and seek to register a the Trade Mark (that I have found not to be deceptively similar to the Opponent’s Trade Marks) in respect of apparel was a decision made to take advantage of any similarity with the Opponent’s Trade Marks. Indeed the Opponent has provided no evidence that it had any reputation in the Opponent’s Trade Marks that the Applicant would want to take advantage of. In circumstances where the evidence in support of the s 62A ground of opposition is very limited and the Opponent bears the onus, I am not satisfied the Applicant’s conduct in filing the application was unscrupulous, underhanded or unconscientious in character. Consequently I find that the Opponent has failed to establish the ground of opposition under s 62A.

   [16] Hard Coffee Pty Ltd v Hard Coffee Main Beach Pty Ltd [2009] ATMO 26, [12].

   Decision

10. The Opponent has failed to establish either of the grounds of opposition it nominated in the SGP.  Trade mark application no. 1859774 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.

    Costs

11. 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 section 221 of the Act in the relevant amounts under Schedule 8 of the Trade Mark Regulations 1995.

    Nicholas Smith

    Hearing Officer

    Delegate of the Registrar of Trade Marks

    24 November 2020