Republic Consulting Pty Ltd v Nhan Chiem
[2008] ATMO 20
•5 March 2008
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by Republic Consulting Pty Ltd to registration of trade mark application 940889(35) - re:public - filed in the name of Nhan Chiem.
Delegate: Terry Williams Representation: Opponent: Stephen Burley of counsel, instructed by Lance Scott, solicitor, of Spruson & Ferguson
Applicant: written submissions onlyDecision: 2008 ATMO 20
Section 52 opposition – section 58 – section 59 established – registration refused.Background
Nhan Chiem (“the applicant”) has applied to register the trade mark re:public in respect of services described as “Marketing, public relations”. The application was filed on 22 January 2003 (“the critical date”). The applicant is, and was at the critical date, resident in Hong Kong.
The application has been examined and advertised as having been accepted for possible registration. Registration is opposed by Republic Consulting Pty Ltd (“the opponent”). The current dispute arises because both parties appear to have done various things consistent with adopting the signs re:public and REPUBLIC, respectively, as trade marks, and to have done so at about the same time[1].
[1] There are some subtleties in the way the opponent represents its trade mark. For convenience, I will render it in upper case, and revert to this matter as necessary below.
The parties have used the process in part 5 of the regulations under the Trade Marks Act (“the Act”) to file and serve evidence to support their respective positions. Ultimately, the matter was set down for me to hear and decide, under delegation from the Registrar of Trade Marks. At the hearing, Stephen Burley of counsel, instructed by Lance Scott, solicitor, of Spruson & Ferguson, appeared for the opponent. The applicant relied on written submissions. I will come to those in due course.
Grounds of opposition
General
The opponent is newly-incorporated under the laws of New South Wales. It is a small company with a number of directors, two of whom are Liza-Jane Loch and David Mair, and it provides public relations, advertising and marketing services. From the official file it is apparent that there is a degree of bad feeling between the opponent and the applicant, some of which has arisen out of perceptions about a discussion between Mr Mair and the applicant on a confidential basis. That discussion took place at a lunch engagement in Sydney in November 2002 when the applicant returned, briefly, to Australia. The subject of that discussion was the proposed usage, by the applicant, of the mark presently in suit.
I understand the applicant feels that he has a moral right to the trade mark. He is, I think, mistaken about the existence of that right and I will endeavor to explain why this is so, but his sentiment is understandable. I very much doubt that the applicant will be satisfied that I have fully investigated the issues unless I deal also with this moral claim.
The high point of that claim rests on an email, sent to the applicant from Mr Mair. That email was sent after Mr Mair discovered that the opponent, a company of whom he is a director, had adopted the trade mark REPUBLIC. Mr Mair has not denied the content of the email in question, though he argues, in the opponent’s evidence in reply, that his words have been taken out of context. In order to keep this issue segregated from the other and more familiar elements of this opposition, I will deal with it first of all.
Mr Mair was, as I said, writing to the applicant, who was then in Hong Kong. Mr Mair wrote of certain events that had occurred at a time when he himself was also out of the country, in Canada attending to his terminally-ill father. On returning to Australia in January 2003, Mr Mair wrote, in an email to the applicant and sent on the critical date, on which the applicant filed the now-opposed application:
In my absence they decided on a name and incorporated. Not so bad in itself save for the fact that they chose your idea (re:public) not realizing it was off-limits. We had had a brainstorming session before I left where I mentioned it as a great name you had developed and that we should be looking for something as creative and inspired. It appears in the intervening period they had forgotten its genesis and eventually decided to run with it. I was very upset about it and feel that I have somehow betrayed your trust/confidence. I know that at this stage an apology is pretty much worthless but I have asked the other directors to make a payment to you as some sort of compensation.
This would seem to be a truly remarkable admission. There is, however, more. In a subsequent email, two days later, Mr Mair, while retracting certain views about the events above, goes on to state:
Apparently the name has a long association with one of the partners who was involved in the now defunct “republic bar” and rather than pay to establish an entirely new company and the associated fees, it was decided that we would use the existing Republic vehicle. As a result they did not even bother using the ad agency I had initially brainstormed with regarding names just before I left….
I hope this clarifies things and certainly hope you don’t feel this precludes you from registering a trade mark on re:public….
Unfortunately, Mr Mair’s email did not clarify a great deal. To do so, it is necessary to see these seemingly most damning comments in their proper context.
This context can be partly established from the declarations of people who appear to be friends and associates of Ms Loch, and who have given evidence in this matter. The applicant has expressed reservations about the veracity of these declarations. I have weighed them with caution, accordingly. It is apparent that the declarants have set out their opinions as to facts, rather than restricting themselves to statements of facts within their own first-hand knowledge[2]. However, on the whole I find it difficult to disregard the general picture built up by the opponent’s declarants.
[2] Thus, for example, Daniel Loch, of Gasoline Communications, asserts that Mr Mair “had not been involved in the design process since our initial discussions in September 2002”. I have no basis for knowing why Mr Loch should be able to give compelling evidence as to what was, or was not, the actual role of Mr Mair. Mr and Ms O’Leary similarly give second-hand evidence about work done by Ms Loch for a third party.
Firstly, there is no doubting that, in on or about 1 November 2002, the applicant had revealed to Mr Mair that he, Mr Chiem, had conceived of a trade mark in terms of re:public, to be used in respect of public relations services. At that time, and for reasons that appear credible but are not overly relevant, Mr Mair said nothing about the opponent’s own plans. The applicant registered a relevant business name in New South Wales on 5 November.
It appears that, in the opponent’s camp, the major proponent of the name re:public was Mr Mair, not Ms Loch. The latter, herself a republican, appears to have been in favour of REPUBLIC, simpliciter, as will be seen.
In June 2002, their company, which deals in public relations, advertising and marketing, had not yet been incorporated. The business relationship between Ms Loch and Mr Mair was still being formalized and Ms Loch was still in employment elsewhere. They agreed, at that point, that a branding agency, Gasoline Communications Group Pty Ltd, (“Gasoline”) would put together several branding options, based on an earlier brainstorming session. One of the options presented to Mr Mair and Ms Loch was a trade mark rendered by Gasoline, at the time, as RE:PUBLIC. In October, Gasoline presented a draft of a brand manual. This seems to be little more than some puffery extolling the values and strengths of the opponent, together with some very rough mock-ups of business cards, letterheads etc. I note that the descriptive text contains some quite obvious typographical errors. Curiously, while the date of October 16, 2002 is very prominent on this brand manual, the business cards refer to an internet address that did not, apparently, become active until considerably later, and to the opponent’s present business address, premises which were not in fact completed until the following year.
Mr Mair and Ms Loch decided to proceed with the incorporation of a company, and the company name – rendered on the certificate of registration as RE:PUBLIC CONSULTING PTY LTD – was registered on 9 December 2002. It became evident at some point that the use of the colon to divide the trade mark would make for difficulties in using the trade mark as part of an internet address, and the rendition ultimately adopted[3] by Gasoline and the opponent was REPUBLIC, with the first syllable in a different colour to the remainder. The company name was accordingly changed on 31 January 2003, nine days after the critical date.
[3] The evidence does not support any safe finding of precisely when. It could have been as early as October 2002, or as late as January 2003.
The opponent sets out, with some documentary support, various things that establish either Ms Loch’s intention to proceed with the usage of a relevant trade mark, or actual usage of that trade mark.
The applicant, in his written submissions, argues that much of this evidence was produced late in the day, as further evidence, and that it is thus inherently suspect. He asserts that the declarants are all friends or associates of Ms Loch. Given that the subject matter in question was the pending adoption of a trade mark for a business that was still only about to be commenced, it is not at all surprising that close associates or confidantes are the only ones who can give evidence about the intentions and plans of, in particular, Ms Loch.
Is the opponent estopped?
This is an issue raised in the applicant’s evidence in answer. At the hearing, Mr Burley submitted briefly that the email communications from Mr Mair should not be taken to have estopped the opponent from opposing. I agree, although the law around reliance-based estoppel can be complex and it is beyond my purpose to attempt a detailed analysis.
The most that might be argued is that the present application was filed in response to, or reliance on, Mr Mair’s first email, though that inference is not clearly supported by the evidence. The most that might be said in such a view is that, the applicant being aware that the opponent had already decided “to run with it” (ie the trade mark REPUBLIC), it thereupon elected to file its own application. I cannot see, even so, how the applicant has done anything in reliance on anything in either email. As to Mr Mair’s purported assurance in his second email, the representation, if such it was, was made two days after the critical date.
Mr Mair, in the second email, went on to make it quite plain that he believed the adoption of the trade mark by the opponent was justified by the opponent’s own independent and honest actions. At the hearing, Mr Burley conceded that there were “factual errors” in some of what Mr Mair put up as justification for the opponent’s conduct. It is, as Mr Chiem has pointed out in his own evidence, unlikely that Ms Loch and Gasoline were unaware of the applicant’s own concept of a trade mark when they put forward the trade mark for adoption by the company at the time the opponent was incorporated. None the less, if it should emerge that, in fact, the opponent was effectively estopped from instigating this opposition, it would be for the applicant to seek, through the courts, redress for any injuries it suffered therefrom.
At the hearing, Mr Burley relied on only two grounds of opposition, those under s 58 and 59 respectively. It will be necessary to set out the relevant points of the evidence to decide if the opponent has established either of these grounds.
Section 58 - Ownership
Ownership of a trade mark is not, ultimately, a moral question. The applicant seems to appreciate this. He argues in his written submission:
… the fundamental issue in this matter I believe is the misappropriation of my trade mark by the opponent and I submit this case should not be decided on the usual “prior use” rules when there is clear acknowledgement in writing of my mark…
I have already decided that the opponent is not estopped from opposing. Therefore, I will revert to what the applicant has referred to as the “prior use rules”. By this, it appears that the applicant notes the position in Aston v Harlee Manufacturing Co (1960) CLR 391. Briefly, after setting out the three elements required to establish a claim to proprietorship (authorship, the intention to use, and the making of an application) Fullagar J went on to say, at 399-400:
...I do not think that the requirement of "authorship" means that the applicant must be the true and first inventor...I do not think that an opponent of an application for registration of a trade mark could succeed by saying merely "I thought of it first", or even "I thought of it first, and communicated it to the applicant". It is otherwise if the opponent has used the mark in relation to goods.
In the second place, it would appear that an applicant may be the "author" of a trade mark, although he has deliberately copied or adopted a mark registered in a foreign country in respect of the same description of goods...Again, it is otherwise if the opponent or person aggrieved has used the mark, for prior user by the foreign proprietor negatives the claim of the Australian applicant to "authorship".
The applicant does not claim to have demonstrated any use of the trade mark prior to the critical date. Accordingly, it is incumbent on the opponent to demonstrate authorship and use prior to that date in the course of trade[4]. As it turns out, the strongest claim that the opponent can mount would suggest that the first user was not the opponent itself, but Ms Loch. Such use, if early enough, and of a substantially identical trade mark, can still be fatal to the application, since it would negate the applicant’s claim to be the owner as at the critical date.
[4] Moorgate Tobacco Company Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73; (1984) 156 CLR 414 at 432-434, Deane J,
The opponent sets out various and sketchy pieces of evidence that are alleged to amount to use of the trade mark.
Thus, Tracey Spicer, an employee of Channel 10 in Sydney, declares that:
As part of her (Ms Loch’s) establishing Republic in mid 2002, Liza invited me to assist Republic in media training. Around October 2002, she approached me about media training of Republics’s first client however that media training did not progress at that time.
I take this as strongly suggestive of Ms Loch’s bona fide intentions but it is not an example of the use of the trade mark in any sort of commercial transaction.
Ms Loch starts the opponent’s evidence in support by stating quite plainly that the opponent “commenced operations in December 2002 under the name REPUBLIC when it took on its first client. Mr Burley argued that the first actual usage of a relevant trade mark was, none the less, in October 2002. No commercial use prior to then can, in my own view, be cited with any degree of confidence at all.
In later evidence, Ms Loch states that “from August 2002 to November 2002 Republic Consulting provided services under the name Republic to an author Keith De Lacy in connection with the promotion of his book”. Curiously, her declaration formally defines the term “Republic Consulting” to mean the opponent company, a company that did not, at that time, exist. Moreover there is no evidence of payment for any such services, nor of the arrangements between Ms Loch and the author. Instead, there is a letter dated 24 October 2002. In it, Ms Loch refers to the public launch of Mr De Lacy’s book Blood Stains the Wattle. This letter is written to Pat and Elizabeth O’Shea, two people who apparently did not attend the launch in question. Ms Loch refers to the launch details being “in this week’s Bulletin”. The footer of the document is simply the word REPUBLIC, and in the letter, Ms Loch enthuses “Republic is coming along nicely and the future is indeed looking rosy”. There is nothing in the letter to show that the word REPUBLIC was used in any way to indicate the services provided by Ms Loch to Mr De Lacy.
There is, again, a singular lack of cogent evidence about the circumstances said to amount to a usage of the trade mark Republic (or perhaps Republic Consulting) in relation to dealings with a business called Hollywood Fashion Tapes, which distributes adhesive tape for use by models etc. Ms Loch declares: “as part of the services, I compiled a database of Republic Consulting contacts who could assist with these services”. The “database” is in fact a list of 28 individuals, all of whom (aside from Tracy Spicer, to whom I have already referred) appear to be editors or writers in the fashion segment of the print media. The list was apparently created on 27 October 2002. However, the date on which this document was provided to the client has not been established with any clarity – Ms Loch, in fact, omits any reference to the provision of this database to her client. Ms Loch is non-specific about precisely how and when “Republic Consulting” was engaged in (apparently) October 2002. Thus, I am not satisfied that there was use of the trade mark REPUBLIC in respect if her dealings with this client, or that any such usage was prior to the critical date.
There is also some evidence of dealings with a man named Bob McMurty, who in turn was providing services to “a high-profile businessman and his property development company National Investment Institute”. It is said by Ms Loch that “Republic Consulting’s services were provided to this business and on 6 November 2002 Republic Consulting made a presentation to the business based in Melbourne.” Ms Loch exhibits the relevant PowerPoint presentation.
Peter O’Leary confirms that Ms Loch met with Bob McMurty at Mr O’Leary’s office and that he is “aware” that Ms Loch ultimately met with the client.
Ms Loch asserts that “Services were provided to this client under the name Republic from November 2002 until June 2003” however there is no supporting invoice, no receipt for payment, no indication of any definite agreement with the ultimate client. Since the PowerPoint proposal envisaged dealings with the ultimate client for a period of at least 20 days over a period of months, with reviews on a monthly basis, and significant amounts of money, this is quite puzzling. Equally puzzling is the fact that, in the PowerPoint document, Ms Loch described herself as a Director of an entity that had “Directors”, plural, at a time when the company did not actually exist.
Mr O’Leary has set out his opinion - that he is “certain Republic Consulting was using the brand name REPUBLIC from at least October 2002 to refer to their public relations services”. I am not myself so convinced. I am satisfied of no more than that, on 6 November 2002, Ms Loch made use of REPUBLIC as a trade mark in the presentation to the company National Investment Institute.
In his written submissions, the applicant has referred to the fact that the material to which I have referred above is part of the opponent’s further evidence, filed and served with permission of a delegate of the registrar after the end of the formal evidence stages. The material is purportedly derived, in part, from a laptop computer that had been in the possession of Ms Loch for some considerable time before the evidence was disclosed. By implication, Mr Chiem would have me infer that the documents were manufactured retrospectively, and that the supporting declarations were made falsely. He has not asked that Ms Loch be required to produce the computer itself for examination and, as to the rest, I have to accept that the various declarants have set out their opinions honestly.
Accordingly, while I appreciate the weaknesses of the opponent’s evidence, I remain satisfied that a usage of the trade mark REPUBLIC has been established in relation to the consultancy services proposed, on 6 November, to be rendered to National Investment Institute. That first user was Ms Loch, who became the common-law owner of that trade mark.
Substantially identical?
Mr Burley conceded that, on the authority of Carnival Cruise Lines Inc v Sitmar Ltd (1994) 120 ALR 495, the opponent must establish conflicting use of exactly the same trade mark or, if not, then of one substantially identical. He noted evidence that, he argued, established usage of:
·RE:PUBLIC
·REPUBLIC (using, for the purpose of this decision, bolding to indicate a distinction that was actually made by usage of different colours)
·REPUBLIC and
·re-public (this last in the context of an email address)
Of these, I have found that the trade mark used by Ms Loch was REPUBLIC.
The usage of REPUBLIC as a trade mark, in commercial dealings with a third party, has not been established at any time prior to the critical date. Mr Mair concedes that the form RE:PUBLIC was a short-lived creature. It did not survive the enthusiasm of Ms Loch for REPUBLIC simpliciter on one hand and the complications that arose from the use of a colon in, potentially, an internet address on the other. I can find no substantiated usage of re-public as a trade mark prior to the critical date.
The usual text cited as authority for substantially identical is set out in The Shell Co. of Australia Ltd. v. Esso Standard Oil (Australia) Ltd. [1961] HCA 75; (1963) 109 CLR 407. Windeyer J said at paragraph 12 of his judgment – my emphasis added and omitting citations:
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. "The identification of an essential feature depends", it has been said, "partly on the Court's own judgment and partly on the burden of the evidence that is placed before it": …. Whether there is substantial identity is a question of fact….
The minimum requirement of similarity to establish ownership was discussed by Gummow J in Carnival Cruise Lines Inc v Sitmar Cruises Ltd [1994] FCA 936; (1994) 120 ALR 495. He commented:
It requires a total impression of similarity to emerge from a comparison between the two marks. In a real sense a claim to proprietorship of the one extends to the other. But to go beyond this is, in my view, not possible. There is, as Mr Shanahan points out in his work, p. 158, real difficulty in assessing the broader notion of deceptive similarity in the absence of some notional user in Australia of the prior mark (something postulated by s. 33) or prior public recognition built up by user (para. 28 (a)).
Mr Burley argued that REPUBLIC and RE:PUBLIC were substantially identical. He noted that the colon made no difference to the sound of the mark, and that the word used in that case is clearly REPUBLIC with a punctuation mark in it. However, while Mr Burley is obviously correct about the negligible effect on the sound of the mark, an unmistakable change has been made to the import of the word as this arises visually. The applicant and Mr Mair have both given evidence about their satisfaction with the play on words that is introduced into RE:PUBLIC when used in relation to public relation services. I agree entirely.
Mr Burley attempted to draw comfort from the decision in Hugo Boss v Jackson (1999) 47 IPR 423 at 435 (BOSS vs BOSS!) but I do not think the analogy is appropriate. Used at the end of a word, an exclamation mark is familiar as adding emphasis: “tiger!”, “danger!” and so forth. It changes the emotional emphasis but not the substance. The same punctuation mark used within a word creates a very different effect: as for example “ti!ger”, “d!anger” and so on.
Mr Mair appreciated the cleverness of the effect created by the colon between “re” and “public”, saying in an email to the applicant “yours is clever, ours is run of the mill”. To emphasize the latter, the opponent has introduced a search of the ASIC National Names Index which shows that there are, or have been, 57 different company names that feature the word “republic”.
I can see no authority for overlooking the obvious changes to the look and primary meaning of the words in question, and find that the trade mark used by Ms Loch is not substantially identical to that used by the applicant.
It follows that the s 58 ground is not established.
Section 59- intention to use
Section 59 of the Act provides:
59 Applicant not intending to use trade mark
The registration of a trade mark may be opposed on the ground that the applicant does not intend:
(a)to use, or authorise the use of, the trade mark in Australia; or
(b)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 specified in the application.
Mr Burley argued that there was no evidence that the applicant had ever used his trade mark in Australia. I agree. The evidence is cast in a way that does not separate any usage in Hong Kong from usage in Australia. It is little short of evasive. Mr Chiem declares:
With my experience in public relations and through my contacts, I have been asked over the years to consult for businesses set up by friends or friends of friends. This would normally entail providing review and advice on public relations and marketing strategies, vetting and re-design of corporate stationery and web sites and writing marketing material for these businesses.
After taking on a few projects, I decided to establish a business called “re:public” based on a concept which is mine. Public relations and communications is always about communicating messages to the public and I thought re:public would be a clever play on words and a suitable name for my business
(He then sets out details of the confidential discussions with Mr Mair. Four days after that, he registered the business name with the NSW Department of Fair Trading)
My business has provided services to clients in Australia and overseas including (names, not particularly relevant, of various businesses). (and)
I had retained a graphic designer, Tommy Tam of GPA Design to come up with a corporate logo and business stationery for my business. Exhibited hereto and marked NC-2 are examples of envelopes, letterheads, stickers and cards.
None of this discloses usage of the trade mark re:public in Australia.
Mr Burley invited me to take note of the lack of use of the applicant’s trade mark and to conclude, for reasons to which I will come, that the application was simply some sort of tactical ploy and that the applicant lacked any present intention to use the trade mark in Australia.
The opponent’s evidence would establish that the applicant is a resident of Hong Kong, where he holds a position with the Hong Kong Shanghai Bank. There are uncontested assertions that the applicant had proposed joining in business with the opponent, and that Mr Mair rejected this overture. There is also a statement by Mr Mair that the applicant intended to return to work in Australia but only “if he became unhappy with working and/or living Hong Kong”. Mr Mair has set out, further, his view that the application now in suit is no more than what Mr Burley called a spoiler. Indeed, his evidence is quite plain: he speaks of the “sinister motive” of Mr Chiem in filing the application, and speculates that the filing is a pay-back by the latter for Mr Mair’s own failure to frankly divulge the opponent’s own plans. That latter, of course, is in my view no more than mere speculation. Any number of explanations for the filing might exist but, none the less, the opponent’s case has been put, most plainly, to the applicant.
This has happened in a context where the intentions of the applicant were, from the outset, one of the grounds of opposition. Yet this aspect of the opponent’s evidence remains unanswered. Mr Chiem has referred, in his written submission, to the need for procedural fairness towards himself. He is aware, however, of the process for introducing further evidence, having participated in the procedure for this when the opponent introduced just such evidence.
The onus is on the opponent to bring in material that suffices to shift the onus from itself, onto the shoulders of the applicant. The situation here is much as was the one that confronted Hearing Officer Purvis-Smith in The Australian Cricket Board v Lilyana Holdings Pty Limited [2002] ATMO 66:
The opponent states, in its general submissions, that when a ground of opposition is raised and a prima facie case made out, the onus shifts to the applicant. In other words, in the absence of a "defense" by the applicant, a prima facie case is all that is required to make out the ground of opposition. The opponent did not define the expression prima facie, however, I am assisted by the words of Lindgren J in Michael Edgley International Pty Ltd and Others v Ashton's Nominees Pty Ltd 26 ALR 419, 421 where he stated [emphasis added by Hearing Officer Purvis-Smith]:
In establishing a prima facie case, in the relevant sense, it is ... not necessary for the applicants to persuade me that, on the present state of the evidence, it is more likely than not that they will ultimately succeed. Rather the applicants must show that they have some real and significant prospect that if the evidence remains as it is at the moment, they will succeed at trial. The test of "a fair chance of success" was adopted by Bowen CJ in Commercial Bank of Australia Ltd v Insurance Brokers' Association of Australia (1977) 16 ALR 161 at 168 and taken up by Brennan J in Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129 at 145, and to me seems very appropriate in the present circumstances as indicating how strong the probability needs to be.
The mere nomination of the section 59 ground cannot shift the onus (Medley Distilling Co v Croakers Gully Australia Pty Ltd 53 IPR 430). The deliberately vague nature of the evidence of the applicant’s past trade mark usage alone could not do it. The applicant’s residence and occupation in Hong Kong are, again, mere pebbles. The aspersions cast by Mr Mair would be, without more, undeserving of an answer, as would the suggestion that the applicant has sought employment with the opponent. Again, the filing of this application on the same day as Mr Mair’s first email would be, without more, nothing. However, taking all together I find that the future intentions of the applicant are under sufficient cloud as to require a plain and direct response[5].
[5] Danjaq, LLC v Resource Capital Australia Pty Ltd [2004] ATMO 18. Comparable registry cases were considered by Hearing Officer Lyons in Americana International Limited v Suyen Corporation [2008] ATMO 4
In the lack of such an answer, which I note it would have been very easy and entirely within the applicant’s power to make, I take the ground of opposition as established.
Conclusion
A ground of opposition having been established, I refuse to register the application and I direct that the applicant pay the costs of the opponent.
Terry Williams
Hearing Officer
Trade Marks Hearings
5 March 2008
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