Real Estate Institute of Australia Limited and Real Estate Institute of Western Australia Incorporated and Professionals Global Limited v REA Group Pty Ltd
[2017] ATMO 82
•4 August 2017
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Oppositions by Real Estate Institute of Australia Limited AND Real Estate Institute of Western Australia Incorporated AND Professionals Global Limited to registration of trade mark application no. 1486181 (35 and 36) – realestate.com.au - in the name of REA Group Pty Ltd.
| Delegate: | Heath Wilson |
| Representation: | Opponents: No submissions. Applicant: Written submissions from Bill Ladas of King & Wood Mallesons. |
| Decision: | 2017 ATMO 82 Three oppositions under section 52 of the Trade Marks Act 1995 -grounds under sections 41, 44, 42(b) and 60 considered – none established – trade mark to proceed to registration subject to outcome of remaining opposition - Costs awarded against Opponents. |
Background
As this matter concerns three oppositions to the registration of the same trade mark under the Trade Marks Act 1995 (‘the Act’), I will firstly set out the background common to all oppositions and then proceed to address the grounds relied upon in each.
On 18 April 2012, REA Group Pty Ltd (‘the Applicant’) filed an application to register a trade mark, the current details of which are:
Trade Mark No. 1486181
Trade Mark: realestate.com.au (‘the Trade Mark’)
Specification of Services:
Class 35: Advertising of real estate property services provided through a web portal
Class 36: Real estate property services provided through a web portal
Endorsements: Evidence and/or other circumstances provided under subsection 41(6).
A ground for rejection under section 41(6) of the Act was raised during examination. Subsequently, the decision of Bromberg J in REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559 (‘REA’) was handed down on 7 June 2013. The findings made in REA formed the basis (along with a restriction to the specification of services and the provision of evidence of use) for the examiner to accept the Trade Mark for possible registration under subsection 41(6) of the Act.
Advertisement of the Trade Mark’s acceptance appeared in the Australian Official Journal of Trade Marks on 26 June 2014.
During the opposition period, a total of nine Notices of Intention to Oppose (‘NIO’) were filed by different opponents. Five of those oppositions have already been finalized. For this decision, I am addressing three of the remaining four oppositions.
On 20 August 2014, the Real Estate Institute of Australia Limited (‘REIA’) filed its NIO and later its Statement of Grounds and Particulars (‘SGP’) setting out grounds of opposition under sections 41 and 44 (listing trade mark nos. 1049830, 1361989, 1455362 and 1595341).
On 25 August 2014, the Real Estate Institute of Western Australia Incorporated (‘REIWA’) filed its NIO and the SGP that followed listed grounds of opposition under section 41, 42(b) and 60 of the Act.
On 26 August 2014, Professionals Global Limited (‘Professionals’) filed its NIO and its later filed SGP set out grounds of opposition under sections 41 and 44 of the Act (listing trade mark nos. 1027588, 1038007, 1049830, 1199077, 1335080, 1361989, 1368375, 1455362).
The Applicant subsequently filed a Notice of Intention to Defend for each opposition. I will refer to REIA, REIWA and Professionals collectively as ‘the Opponents’ for the purposes of this decision.
Evidence
The evidence filed in accordance with the Trade Marks Regulations 1995 (‘the Regulations’) in the three oppositions comprises:
REIA’s Evidence in Support
Statutory Declaration of Amanda Louise Lynch (Chief Executive Officer of REIA) made 9 January 2015 with annexures A to M.
REIWA’s Evidence in Support
- Declaration of Neville Alan Pozzi (Chief Executive Officer of REIWA) made 2 February 2015 with annexures NP-1 to NP-17.
Professionals’ Evidence in Support
- Declaration of Gary William Nock (Partner at Cullens Patent and Trade Mark Attorneys) made 2 February 2015 with exhibits 1 to 3.
Applicant’s Evidence in Answer[1]
- Two Statutory Declarations of Bill Ladas (Special Counsel at King & Wood Mallesons) made 22 April 2015 and 23 April 2015 with exhibits BL-1 to BL-15 (‘Ladas 1’ and ‘Ladas 2’ respectively). Exhibits BL-4, BL-6, BL-7 and BL-10 to the declarations are marked confidential.
[1] The same evidence in answer was filed in respect of each opposition.
REIA’s Evidence in Reply
Statutory Declaration of Ian Narain Bretell (Lawyer at Bradley Allen Love) made 12 August 2015 with annexures INB-1 to INB-3.
Following the conclusion of the evidence stages, the parties were given an opportunity to request a hearing in this matter.
The matters were subsequently allocated to me as a delegate of the Registrar of Trade Marks. In that capacity, I made a direction under Reg 5.19 of the Regulations that all the above evidence be considered concurrently. Given the nature of the multiple oppositions, I directed that three of the oppositions would be heard on the material comprising the written record and set out a timetable for the provision of written submissions.
None of the Opponents provided written submissions in support of their respective oppositions. I therefore do not have the benefit of any guidance on how the Opponents’ evidence relates to the grounds of opposition particularized in each SGP. The Applicant, however, filed extensive written submissions on 17 May 2017 dealing with each opposition in turn.
I note that the Trade Mark has already been subject to a separate (unsuccessful) opposition proceeding in First National Group of Independent Real Estate Agents Limited v REA Group Ltd [2016] ATMO 102 (‘First National’). In that decision, Hearing Officer McDonagh found the grounds of opposition under sections 41 and 44 of the Act to be unsuccessful. In making that decision he found that the Trade Mark while not to any extent inherently adapted to distinguish had acquired, through use, distinctiveness sufficient that it does distinguish the designated services from those of other traders and that the Trade Mark was not substantially identical with, nor deceptively similar to, trade mark nos. 1361989 and 1455362.[2]
[2] Or, if any of the trade marks were deceptively similar, the Applicant had produced evidence sufficient for the Trade Mark to be accepted under the provisions of section 44(4) of the Act in any event.
Onus
The Opponents bear the onus of establishing at least one of the grounds of opposition on the civil standard of the balance of probabilities.[3] The rights of the parties are to be determined as at the date of the application[4] which is generally, but not always, the filing date.[5] The relevant date for these oppositions is 18 April 2012.
Reasons
[3] 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].
[4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd [1954] HCA 82; (1954) 91 CLR 592, [595].
[5] See sections 6, 12, and 72 of the Act.
Section 41
At the filing date, section 41 of the Act[6] relevantly provided:
[6] Section 41 of the Act as it stood prior to amendments to that section brought about by the Intellectual Property Legislation Amendment (Raising the Bar) Act 2012 (Schedule 6, Item 113). Unless otherwise indicated, all references to section 41 in this decision are to the section as it stood prior to the amendments.
41Trade mark not distinguishing applicant’s goods or services
(1)…
(2)An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered (designated goods or services) from the goods or services of other persons.
Note:For goods of a person and services of a person see section 6.
(3)In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, the Registrar must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons.
(4)Then, if the Registrar is still unable to decide the question, the following provisions apply.
(5)If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so distinguishing the designated goods or services:
(a)the Registrar is to consider whether, because of the combined effect of the following:
(i)the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;
(ii)the use, or intended use, of the trade mark by the applicant;
(iii)any other circumstances;
the trade mark does or will distinguish the designated goods or services as being those of the applicant; and
(b)if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons; and
(c)if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant’s goods or services from the goods or services of other persons.
(6)If the Registrar finds that the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:
(a)if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
(b)in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.
As mentioned above, there have been no submissions from the Opponents and the Hearing Officer in First National found that the Trade Mark is not to any extent inherently adapted to distinguish the designated services. I will therefore not revisit the question of inherent distinctiveness of the Trade Mark. I also note that the Applicant does not contest the point, but instead argues that the Trade Mark has acquired distinctiveness and the provisions of section 41(6)(a) of the Act should apply, in line with the reasoning in First National.
Accepting that the Trade Mark is not to any extent inherently adapted to distinguish the designated services from those of other traders effectively addresses the bulk of the Opponents’ evidence relating to the section 41 ground. For Professionals, the statutory declaration of Gary Nock additionally states that:
Irrespective of the amount of use made by the applicant, the opposed trade mark is simply incapable of ever distinguishing the services of the applicant from similar services provided by other traders.[7]
[7] Declaration of Gary Nock, paragraph 14.
However, as was made clear in the decision of Blount Inc v Registrar of Trade Marks:
The concept of adaption to distinguish, which was, as Gummow J pointed out in the Oxford University Press Case, central to s 26 of the 1955 Act, is not reflected in s 41 of the Act. Section 41 is concerned with capacity to distinguish. As s 41(6)(a) makes plain, a trade mark which is not to any extent inherently adapted to distinguish may nonetheless be treated under the Act as capable of distinguishing if, by reason of past use, it does in fact distinguish. The Act appears plainly to disclose an intention that it should no longer be the case that a trade mark which is "100 per cent distinctive in fact" should not be able to achieve registration (as to the expression "100 per cent distinctive in fact" see the Oxford University Press Case per Lockhart J at 511 and Gummow J at 523). This conclusion is confirmed by recommendation 4B of the report of the Working Party:
"Inherent distinctiveness, or acquired distinctiveness or a combination of both, should establish that a mark is capable of distinguishing the specified goods or services, and justify registration." [8]
[8] [1998] FCA 440.
The declaration of Mr Nock goes on to point out certain use by the Applicant of a composite trade mark consisting of ‘realestate.com.au’, the device of a silhouette of a house within a circle and the slogan ‘Australia lives here’.
This point is reiterated in paragraph 19 onwards of the statutory declaration of Amanda Lynch (for REIA) which refers to the Applicant’s use of the aforementioned composite trade mark along with the tagline ‘Australia’s No 1 property site’. The declaration of Mr Neville Pozzi (REIWA) similarly points out the lack of distinctiveness of the Trade Mark and highlights the use of the Applicant’s composite trade marks. The wording closely mirrors that of Ms Lynch’s declaration. The argument made by Ms Lynch (and others) is that the Applicant has not used ‘realestate.com.au’ by itself sufficiently to render the Trade Mark capable of distinguishing the Applicant’s services from those of other traders.
Having noted these criticisms of the Applicant’s evidence, the following findings from Bromberg J in REA regarding the Applicant’s use, are instructive:
… I consider that the nature and extent of the advertising of the term in connection with REA’s residential portal, makes it likely that when “realestate.com.au” is displayed as a trading or domain name for that portal, it is recognised as such by a significant number of Australian consumers who use property portals.[9]
…
The manner in which consumers reach REA’s websites also strongly favours a finding that REA’s domain names are distinctive of its property portal businesses because those names are utilised by consumers when trying to locate those businesses. Analytical tools capable of tracking and recording the source of traffic coming to a website have been utilised by REA to show the source of internet traffic to REA’s websites. In the first six months of 2011, some 53% of visits to the realestate.com.au website came from direct traffic. Direct traffic refers to those visits made to a website when an internet user has typed the web address for the website into the user’s web browser, or has clicked a saved link to that web address (for example, a link saved as a ‘favourite’ link). Access through a saved link does not evidence name recognition but other access via a web browser does. Whilst no breakdown was available which identified the proportion of direct traffic that arrived directly from a web browser, I would infer that a very significant number of consumers have gained access in that way. Given the very substantial numbers overall, there must be many hundreds of thousands of consumers in that category.
More specific evidence was produced that suggests very substantial consumer familiarity with the term “realestate.com.au”. In July 2010, the most popular search term driving traffic to the realestate.com.au website from organic search results was the term “realestate.com.au”. Some 6% of all traffic arriving at the realestate.com.au website arrived as a result of a searcher using that keyword phrase. Between 9 November 2011 and 9 December 2011, on about 1 million occasions, consumers came to the realestate.com.au website having clicked on an organic search result that was displayed because the consumer used “realestate.com.au” as the keyword search term. In the same period, on about 110,000 occasions, consumers arrived through a similar path having used “ as a keyword search term.[10]
[9] REA Group Ltd v Real Estate 1 Ltd [2013] FCA 559, [109].
[10] Ibid, [110]-[111].
For the avoidance of doubt, the Applicant’s evidence contained in Ladas 1 and Ladas 2 affirm the above findings and indicate that although the domain name ‘ has been live since November 1998, significant promotion of the expression occurred from 2005 and 2006 onwards. The evidence therefore indicates significant and widespread use of the Trade Mark before the priority date on the designated services.
The Applicant’s evidence is the same as that before the Hearing Officer in First National and includes the evidence provided to the court in REA. The Hearing Officer also adopted the reasoning of Bromberg J in REA and decided that it was appropriate to accept the Trade Mark under section 41(6)(a). On the material before me, I see no reason to disturb that finding and (although it was not argued by the Applicant) it may be the case that there exists a form of issue estoppel as regards the earlier specific finding of the delegate of the Registrar.[11]
[11] See Blair v Curran [1939] HCA 23, [531]-[532]; Administration of the Territory of Papua and New Guinea v Guba [1973] HCA 59, [453] and Bogaards v McMahon [1988] FCA 161, [45].
On the material submitted before me I would, in any event, reach the same conclusion and find that section 41(6)(a) of the Act applies to the Trade Mark. Accordingly, the Opponents have not established the ground of opposition under section 41 of the Act.
Section 44
Section 44 of the Act relevantly provides:
44Identical etc. trade marks
(1)…
(2)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:
(a)it is substantially identical with, or deceptively similar to:
(i)a trade mark registered by another person in respect of similar services or closely related goods; or
(ii)a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and
(b)the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.
(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.
(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.
In order to establish the ground of opposition, the Opponents must point to the existence of an earlier filed trade mark application or registration that is substantially identical with, and/or deceptively similar to the Trade Mark and is in respect of similar services and/or closely related goods. Of the trade marks identified in the SGPs, REIA and Professionals are relying on the trade marks extracted in the table below:
| TM No. | Trade Mark | Priority Date | Classes of Goods & Services | Status |
| 1027588 | 29.10.04 | 36 | Removed | |
| 1038007 | abouttownrealestate.com; AboutTownRealEstate.com; abouttownrealestate.com.au; abouttownrealestate.net.au | 13.1.05 | 36 | Removed |
| 1049830 | 8.4.05 | 35, 36 | Removed | |
| 1199077 | 13.9.07 | 36 | Registered | |
| 1335080 | 4.12.09 | 36 | Registered | |
| 1361989 | 31.5.10 | 36 | Registered | |
| 1368375 | gympierealestate.com.au | 22.6.10 | 35, 36 | Registered |
| 1455362 | 24.10.11 | 35, 36 | Registered | |
| 1595341 | B4REALESTATE.COM.AU | 5.12.13 | 9, 35, 36, 38, 42 | Registered |
The first three trade marks (nos. 1027588, 1038007 and 1049830) have been removed from the Register and cannot be relied upon for the purposes of this opposition.[12] In addition, Trade Mark no. 1595341 has a later priority date to the Trade Mark. The Hearing Officer in First National has already found that the opposition to the Trade Mark under section 44 on the basis of either trade mark nos. 1361989 or 1455362 could not be established. The decision referred to a number of factors informing that decision and the details have not changed.
[12] See, for example, the reasoning in 1872 Holdings VOF v Havana Club Holding SA [2017] ATMO 12, [25]-[31].
I find that there is a similarity of services[13] between class 35 and 36 of the Trade Mark and those classes in the specifications of the five valid trade marks in the table above. Of those trade marks I note the visual, phonetic and conceptual differences to the Trade Mark along with the incorporation of the common element ‘realestate.com.au’. I find that some of these trade marks may be deceptively similar to the Trade Mark.
[13] See section 14(2) of the Act.
Having said that, none of the trade marks identified are owned by any of the Opponents and as a result I have not been provided with any evidence of use of those trade marks. Conversely, the Applicant has demonstrated continuous use of the Trade Mark since at least 2005 and is therefore able to demonstrate prior continuous use (under s44(4) of the Act) in respect of all of the remaining trade marks. Accordingly, it is appropriate to apply those provisions, and I find that the ground of opposition under section 44(2) of the Act has not been established by the Opponents.
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.
REIWA is the only Opponent that has relied upon the grounds of opposition under sections 60 and 42(b) of the Act.
For the first limb of section 60 to be established, Australian legal precedent points to a requirement that a ‘significant’ or ‘substantial’[14] number of consumers within the relevant trade/market (rather than Australian 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[15] and may depend on the specialised nature of the relevant market.[16] The reputation must exist within a trade mark and be extant in Australia as at the priority date.
[14] 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.
[15] “Bali” Trade Mark [1969] RPC 472, (496).
[16] Le Cordon Bleu BV v Cordon Bleu International Ltee (2001) 50 IPR 1; [2000] FCA 1587, [20].
REIWA sets out in its Statement of Grounds and Particulars that it had widespread reputation in ‘REIWA’ and ‘REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA’ from 1944, ‘REIWA.COM’ and ‘REIWA.COM.AU’ from 2000, and ‘REALESTATEWA.COM.AU’ from 2010 for services including the ‘operation of a real estate web portal for sellers, buyers, tenants and agents to connect.’
REIWA relies upon the contents of the declaration of Neville Alan Pozzi. Mr Pozzi declares that the ‘REAL ESTATE INSTITUTE OF WESTERN AUSTRALIA’ was formed in 1918 and later became known by its acronym ‘REIWA.’ From 2000, domain names began to be used in REIWA’s branding which initially included ‘reiwa.com’ and ‘reiwa.com.au’. The Opponent has also registered the domain name ‘realestatewa.com.au’ which diverts to ‘reiwa.com.au’.
Annexure NP-15 is a document entitled “Understanding the Real Estate Market’s Perception of REIWA” and is dated October 2012, which is after the priority date of the Trade Mark. The document compares general consumer awareness of ‘reiwa.com.au’ to the Applicant’s ‘realestate.com.au’ and although it is clear that consumers are more aware of the Trade Mark, REIWA’s website is second most likely to be recalled by consumers, according to the report.
The declaration of Mr Pozzi further annexes examples from REIWA’s websites but specific advertising/sales figures for the promotion of (for example) the domain name ‘reiwa.com.au’ as a trade mark, are not provided. In addition, I note the visual and aural differences between the acronym ‘REIWA’ or ‘reiwa.com.au’, and the Trade Mark. In the end, I have not been provided with evidence of a significant or substantial reputation that had been acquired by a trade mark before the priority date such that section 60(a) of the Act has been satisfied.
As a result, the relevant deception or confusion under this ground is not likely to arise from the use of the Trade Mark. As it stands, I find that the ground of opposition under section 60 of the Act has not been established.
Section 42(b)
Section 42(b) of the Act provides:
42Trade 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 its SGP, REIWA alleged that the use of the Trade Mark would be contrary to law as its use would amount to misleading and deceptive conduct and/or create a false representation under the Australian Consumer Law and amount to passing off the goodwill and reputation in the REIWA’s trade marks.
REIWA’s SGP indicates that this ground of opposition has been raised on the basis that its trade marks have enjoyed a substantial reputation in Australia for the services. The effect of the reputation in REIWA’s trade marks is that consumers are likely to believe that there is an affiliation, endorsement or sponsorship from REIWA where there is none.
As found under the section 60 ground of opposition, I am not satisfied that REIWA has demonstrated the requisite reputation has been acquired by its trade marks for deception or confusion to be the likely result. It follows that any reputation is likewise insufficient to support an argument for misleading and deceptive conduct, as it is a more onerous standard.[17] In relation to the tort of passing off, that argument from the Opponent must also fail. As mentioned in Equity Access Pty Ltd v Westpac Banking Corp:
The scope for the operation of s.52 will thus be broader than that involved in the tort of passing off so that in a case such as the present where the claim is for the protection of the reputation in a name against the use of that name by another, failure to succeed under s.52 or s.53 will invariably mean that proceedings for passing off would likewise fail.[18]
[17] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, [8].
[18] Equity Access Pty Ltd v Westpac Banking Corp [1989] FCA 506; (1989) 16 IPR 431 [40].
I am not satisfied that the use of the Trade Mark would constitute misleading or deceptive conduct or that it satisfies the requirements of the common law tort of passing off. In short, REIWA has not discharged the onus of establishing that the use of the Trade Mark ‘would’ rather than ‘could’[19] be contrary to law.
[19] 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(1) of the Act 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 oppositions have not been successful. I direct that, subject to the outcome of any remaining opposition, trade mark application no. 1486181 may proceed to registration after one month from the date of this decision with the following endorsements:
Provisions of subsection 41(6) applied
Provisions of paragraph 44(4) and/or Reg 4.15A(5) applied
If the Registrar is served with a notice of appeal on or before that time, I direct that registration shall not occur until the appeal has been discontinued, or in the event of a decision from the court, that the application be subject to that order.
Costs
As the oppositions have not been successful, I award costs against the Opponents under section 221 of the Act in the relevant amounts allowable under Schedule 8 of the Trade Marks Regulations 1995.
Heath Wilson
Hearing Officer
Oppositions and Hearings
4 August 2017
12
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