Rhino Rack Australia Pty Limited v Industrias Jed S.r.l

[2025] ATMO 71

TRADE MARKS ACT 1995

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

Re:Opposition by Rhino Rack Australia Pty Limited to registration of trade mark application number 2023100 (class 12) – Rhino 4x4 and device - in the name of Industrias Jed S.R.L.

Delegate:

Anne Makrigiorgos

Representation:

Opponent: Jessie McKenna of counsel instructed by IP Solved (ANZ) Pty Ltd

Applicant: Caitlin Hadlee and Melissa Yan of Hudson Gavin Martin

Decision:

2025 ATMO 71

Trade Marks Act 1995 (Cth) – opposition under s 52 – ss 42(b), 43, 44, 58, 60 and 62A – s 60 considered and established – trade mark refused registration

Background

1. This decision concerns an opposition under s 52 of the Trade Marks Act 1995 (Cth)[1] by Rhino Rack Australia Pty Limited (‘Opponent’) to registration of the following trade mark:

   [1] Unless otherwise stated, each reference to a section is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) and each reference to a regulation is a reference to a regulation in the Trade Marks Regulations 1995 (Cth) (‘Regulations’).

   Trade mark number:  2023100 (‘Application’)

   Trade mark:   (‘Trade Mark’)

   Applicant:  Industrias Jed S.R.L. (‘Applicant’)

   Filing Date:  15 July 2019 (‘Relevant Date’)

   Specification:               Class 12: Bullbars, siderails and rearbars, underbody protection plates; protector and guards for vehicle body parts; frontal vehicle protection, side vehicle protection, rear vehicle protection, flares for vehicle wheel arches, parts and accessories in this class for the aforementioned

   (‘Applicant’s Goods’)

   Endorsement:              Provisions of paragraph 44(3)(a) and/or Reg 4.15A(3)(a) applied.

2. The Trade Mark was examined and advertised as accepted for possible registration on 5 September 2023.

3. On 12 September 2023, the Opponent filed a Notice of Intention to Oppose the Application. On 6 October 2023, the Opponent filed a Statement of Grounds and Particulars (‘SGP’). The Applicant filed a Notice of Intention to Defend the opposition on 16 November 2023.

4. The Opponent filed Evidence in Support (‘EIS’) on 13 February 2024. The Applicant filed Evidence in Answer (‘EIA’) on 13 May 2024. The Opponent filed Evidence in Reply (‘EIR’) on 9 July 2024.

5. The parties were given the opportunity to either request an oral hearing or to file written submissions. Both parties elected to be heard by video conference. As a delegate of the Registrar of Trade Marks, I heard this matter via video conference on 20 March 2025. Prior to the hearing, both parties filed a written summary of their submissions. At the hearing, Jessie McKenna of counsel instructed by Brian Shortt of IP Solved (ANZ) Pty Ltd appeared on behalf of the Opponent, and Caitlin Hadlee and Melissa Yan of Hudson Gavin Martin appeared on the Applicant’s behalf. I have decided this matter based on the particulars set out in the SGP, the evidence of the parties and the written and oral submissions of the parties.

   Grounds and onus

6. The SGP nominates grounds of opposition under ss. 42(b), 43, 44, 58, 58A, 60 and 62A. In the Opponent’s written submissions, the Opponent indicated it was not pursuing the s 58A ground of opposition. I therefore treat this ground as abandoned.

7. The Opponent carries the burden of establishing at least one ground of opposition[2] on the balance of probabilities.[3] The date at which the rights of the parties are to be determined is the Relevant Date.[4]

   [2] Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, [32] (Keane CJ, Stone and Jagot JJ).

   [3] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelmann JJ).

   [4] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J) (‘Southern Cross’).

   Evidence

8. The parties filed the following evidence in this matter:

Declarant and Position	Date	Annexures or Exhibits
EIS
Nicholas Clarke, General Manager – Product Development of the Opponent (‘Clarke’)	12 February 2024	1 to 21 including Confidential 11 and 20
EIA
Alejandro Antonio Pereyra, CEO of the Applicant (‘Pereyra’)	10 May 2024	1
Ishan Kokulan (‘MP’), solicitor at Hudson Gavin Martin (‘Kokulan’)	10 May 2024	IK-1 to IK-24
EIR
Chris Radford, head of sales and general manager of the Opponent (‘Radford’)	5 July 2024	1 to 8

The Parties

Opponent

1. The Opponent is Rhino Rack Australia Pty Limited which was incorporated in 2006 and offers a range of automotive products in Australia and worldwide.

   Applicant

2. The Applicant is Industrias Jed S.R.L., a designer, manufacturer and retailer of automobile modification equipment for utility and service vehicles based in Argentina.

   Summary of evidence

   EIS

   Clarke

3. Clarke is 1514 pages and therefore, only a brief summary is set out below.

4. Clarke attests that the Opponent is the owner of the RHINO-RACK brand and trade mark (‘Word Mark’). Clark provides details of the Opponent’s Word Mark registrations and registrations for four RHINO-RACK formative marks in Australia (together ‘Opponent’s Registrations’). Below is a table with brief details of the Opponent’s Registrations. Full details of the goods and services are provided at Annexure A:

Number	Mark	Class	Priority date
603068 (‘068 Mark’)	12	25 May 1993
1347991[5] (‘991 Mark’)	6, 12, 22	28 August 2009[6]
1626038 (‘038 Mark’)	12	11 June 2014
1715154 (‘154 Mark’)	6	21 August 2015
1959310[7] (‘310 Mark’)	RHINO-RACK	6, 12, 22	3 October 2018
1959891 (‘891 Mark’)	RHINO-RACK	8, 18, 20, 25, 35	4 October 2018

[5] Endorsements: Provisions of subsection 44(4) and/or Reg 4.15A(5) applied and Provisions of paragraph 44(3)(b) and/or Reg 4.15A(3)(b) applied.

[6] Convention priority claimed from EU number 008516163.

[7] Endorsement: Provisions of subsection 44(4) and/or Reg 4.15A(5) applied.

1. Clarke states that during prosecution of the 991 Mark, the Opponent filed a declaration in the name of Ernesto Fernandez, marketing and business development manager of the Opponent (‘Fernandez’) demonstrating use of the  trade mark from 1992 to early 2003 and exhibits a copy of Fernandez.[8] Fernandez is dated 25 February 2013 and contains exhibits EF-1 to EF-7, and is summarised below at [22] to [28] of this decision.

   Adoption of the Trade Mark

   [8] Clarke [13] Exhibit 1.

2. Clarke claims that the Word Mark was adopted and first used by the Opponent’s predecessor Fetovu Pty Ltd (‘Fetovu’) in 1992 and claims that the business of Fetovu was acquired by the Opponent. No supporting evidence nor a date of the purchase of the business of Fetovu is provided.

   Use of the Trade Mark

3. Clark states that the Opponent and Fetovu have over the years used the Word Mark and the following trade marks in connection with the Opponent’s automotive products:

   , the 068 Mark and the 991 Mark (together ‘Opponent’s Marks’).

4. Clarke states that the goods upon which the Opponent’s Marks are used include a broad range of automotive products listing the goods of the 991 Mark. Clarke exhibits copies of catalogues and parts of catalogues and brochures from 2010 to 2022 showing the Opponent’s range of goods. Clark refers to the range of goods in the 2020 brochure as the Opponent’s goods which consist of vehicle roof top carriers, roof bars (roof racks), roof mounts, roof trays, roof canopies, roof platforms, roof awnings and a range of parts and accessories such as load or product securing devices including brackets, rachet grabs, bolts, sand screws, hoops, clamps, slides, nets, cables, bags, handles, holders, straps and other accessories such as wheel steps, shovels, spades, ladders, conduits and number plate holders (‘Opponent’s Goods’).

5. Clarke states that the Word Mark appears on the Opponent’s website at (‘Opponent’s Website’) exhibiting extracts from 2021 and 2023. Clarke also provides extracts from the Wayback Machine of the Opponent’s Website from 1999 to 2020, where I note use over those years of the trade marks , the Word Mark, the 991 Mark and the trade mark Rhino (‘Rhino Mark’), together with examples of packaging of the Opponent’s Goods where I note use of the 991 Mark.

6. Clarke attests that the Opponent’s Goods are sold through hundreds of authorised dealers nationally including ARB, Autobarn, Auto One and Repco amongst others, and directly through the Opponent’s Website. Clarke exhibits Wayback Machine extracts from a number of authorised dealers websites from 2005 to 2021 where I note use of the Rhino Mark, the Word Mark and the 991 Mark.

   Sales revenue and advertising expenditure

7. Clarke provides approximate confidential sales figures per annum for the Opponent’s Goods sold in the Australian marketplace for the years 2008 to July 2023, which are substantial. Clarke also provides approximate confidential Australian advertising and marketing figures per annum for each year from 2013 to August 2023. These figures are also substantial.

   Advertising and promotion

8. There has been extensive advertising and promotion of the Opponent’s Marks including on invoices, catalogues, promotional materials, magazines including online, brochures, flyers, third party catalogues, social media including Facebook, Instagram, YouTube, the TV shows ‘All 4 Adventure’ and ‘Australia by Design’ (which air on Channel 10) and expo stands at a number of national trade shows. Clarke exhibits, screenshots from the TV shows, examples of articles from magazines, screenshots from the Opponent’s YouTube channel, likes and followers numbers for Facebook and Instagram, amongst other examples.

9. In addition, the Opponent’s Goods are advertised on third party websites of online retailers such as amazon.com.au, and amongst many others, exhibiting screenshots from a representative sample of some of these websites.

   Confusion

10. Clarke states that confusion has already occurred by the Applicant’s use of the Trade Mark on rooftop goods at a trade show in Sydney in 2022 in that a number of customers contacted the Opponent enquiring whether the products displayed originated from the Opponent or were authorised by the Opponent, exhibiting a copy of a letter of demand to the Applicant and subsequent replies.

    Fernandez

11. Fernandez claims that the trade mark  was adopted and first used by the Opponent on 13 March 1992 and that over the years used the trade mark, the 991 Mark and the 068 Mark have been used in connection with the Opponent’s automotive products as claimed in the 991 Mark.

12. Fernandez exhibits details from the Australian Securities & Investments Commission Register (‘ASIC’) of:

    ·     the business name RHINO RACK which was registered in New South Wales on 13 March 1992. No indication of the owner of this business name is provided.

    ·     the Opponent, which was registered on 15 November 2006.

13. Fernandez states that the  trade mark is used on the Opponent’s stationery and corporate documentation such as invoices, reminder invoices and facsimile correspondence and exhibits copies of the same dated between 2004 and 2007. I note the invoice and reminder invoice both refer to Fetovu. Fernandez also exhibits copies of two undated brochures both of which only refer to roof racks and one or more of the Word Mark, the Rhino Mark and the  mark.

14. Fernandez provides undated details of authorised dealers of the Opponent’s automotive products in New South Wales.

15. Fernandez claims the Opponent’s business expanded year on year, providing sales revenue for the Opponent’s automotive products categorised as ‘alloy trays, bike carriers, boat loaders and components’ under the  trade mark for the 2001/2002 financial year and exhibits a tax return for Fetovu for 1994 which shows sales revenue for 1994.

16. Fernandez exhibits Wayback Machine screenshots of the Opponent’s Website from 1999 to 2013 with various references to the trade marks ,, the 991 Mark, the Rhino Mark and the Word Mark over these years.

17. Fernandez provides advertising expenditure for the period 1996 to 2012 in the form of what appear to be general ledger sheets but this is not entirely clear. What is also not clear is the dates of some of the expense sheets. I can only see dates for 1997, 1999, 2002/2003 and 2005/2006.

    EIA

    Pereyra

18. As a preliminary observation, Pereyra contains a blanket statement that the information and exhibits disclosed in the declaration are confidential. A statement of this nature is difficult to reconcile with the discussion of publicly available records and information in many parts of the declaration. I acknowledge the Applicant’s interests in preserving its confidential information, however, the Registrar must provide reasons for her findings. In discharging this duty, information claimed to be confidential may require discussion. This is particularly relevant when little to no effort has been made to specify the allegedly confidential information. Accordingly, where such discussion is unavoidable, broad statements will be used to minimise the risk of divulging any sensitive information.

19. Pereyra states that Mr Pereyra previously made a declaration showing use of the Trade Mark in Australia between the period 2013 to 2019 to support acceptance of the Application under s 44(3)(a) and exhibits a copy of this declaration (‘Pereyra 2’). Pereyra 2 is dated 22 August 2023 and contains exhibits AP-1, AP-1A, AP-1B, AP-2 to AP-14.

20. Pereyra claims that the Applicant does not sell any roof rack systems under the Trade Mark in Australia and the goods offered by the Applicant under the Trade Mark are not similar to those of the Opponent. Pereyra also claims that the Trade Mark and the Opponent’s Registrations have co-existed in Australia since 2013 without issue.

21. Mr Pereyra declares that as of the date of his declaration, the Applicant does not, and has no plans to, offer any rooftop goods in Australia under the Trade Mark.

    Pereyra 2

    Adoption of the Trade Mark

22. Mr Pereyra claims that he chose and used the name Rhino 4x4 in 1992 in Argentina when he began trading as a sole proprietor. After he founded the Applicant in 2000, the Applicant continued to use the name Rhino 4x4. Mr Pereyra states that a variation of the Trade Mark was used in Argentina since 1992 which has not been identified. Mr Pereyra attests that the Trade Mark has been used in Australia from around 2013. Mr Pereyra declares that the Trade Mark was not selected due to, or influenced by, any existing branding in use by other traders at that time and that he was not aware of any instances of confusion arising from the Applicant’s or its authorised distributor’s use of the Trade Mark in any country, including Australia.

23. Pereyra 2 states that the Applicant attempted to register the Trade Mark in Australia in 2014 under trade mark numbers 1636984, 1772785, 1910833 and 2058817[9] but these applications were all abandoned as they faced registration issues.

    [9] Full details of these applications appear at Annexure B.

24. Pereyra 2 states that the Applicant was unaware of the Opponent’s Registrations when it filed its now lapsed applications on 25 July 2014 and was unaware of the 310 Mark when it filed the Application.

    Use of the Trade Mark

25. Pereyra 2 states that the Applicant sells and exports front bars, rear bars, LED lights, winches, nudge bars, recovery kits, air compressors, under protection kits, roll bars, light mounting bars, and rock sliders under the Trade Mark (‘Used Goods’). Pereyra 2 claims that the Used Goods can be purchased through the Applicant’s website at including from Australia.

26. Pereyra 2 claims that the Applicant authorises its Australian distributors Rhino 4x4 Pty Limited (‘Rhino 4x4 AU’) and Trailmax Pty Ltd (‘Trailmax’), and each of their dealers (‘Dealers’), to use the Trade Mark in all Australian states in respect of the Applicant’s Goods. The Applicant began exporting to Australia through Trailmax in 2013 which continued in 2014, and from June 2015, the distributor was Rhino 4x4 AU. Pereyra 2 exhibits an undated screenshot from the Trailmax website at where I note reference to Rhino 4x4 but no reference to the Trade Mark. Pereyra 2 also states that the Applicant’s first sale of the Used Goods in Australia was prior to the Applicant’s relationship with Trailmax and Rhino 4x4 AU, being shipped directly from the Applicant to a customer in Australia. Pereyra 2 exhibits a list of shipping permits of the Used Goods between 2013 and 2019 where I note this first sale is stated as being through Trailmax in 2013.

27. Pereyra 2 states that there are 75 Dealers in Australia exhibiting a screenshot dated 24 July 2023 from the Rhino 4x4 AU website at (‘Rhino Website’) of a map which shows pin locations of the Dealers.

28. Pereyra 2 exhibits examples of roll bars, front bars and kits bearing the Trade Mark, however the quality of the exhibits is poor making it impossible to distinguish the Trade Mark. Pereyra 2 also exhibits undated photographs of packaging and labels of the Used Goods. I note use of the Trade Mark on the packaging.

    Advertising and promotion

29. Pereyra 2 exhibits copies of 2014 catalogues and brochures used in Argentina[10] to advertise the Used Goods and claims that Trailmax, Rhino 4x4 AU and the Dealers also produce similar materials to advertise the Used Goods in Australia. No supporting documentation is provided.

    [10] Exhibit AP-1B.

30. Pereyra 2 claims that the Applicant advertises and promotes the Trade Mark as follows:

    ·on the Rhino Website exhibiting extracts of the Rhino Website obtained from the Wayback Machine dated between 24 June 2014 and March 2019;

    ·Facebook and Instagram exhibiting undated extracts from Facebook claimed to be from June 2014 to March 2019 and a screenshot from Instagram dated 30 May 2015. Follower and likes numbers in 2023 for Facebook and Instagram are provided which are low;

    ·Dealers’ websites exhibiting Wayback Machine extracts from Trax Industries at and Tough Toys at dated 10 March 2019 and 3 September 2019 respectively, and undated screenshots from the websites of Hektik Automotive Group at and Diesel Performance Tune at (which both contain a copyright claim to 2023); and

    ·banners, information displays, marquees and vehicles at trade shows exhibiting undated Facebook images from these trade shows claimed to be from 2014 to 2019. The claimed dates and location of the trade shows attended by Rhino 4x4 AU are provided.

    Sales of the Used Goods

31. Pereyra exhibits copies of three invoices to Trailmax, the earliest dated 12 December 2013 and three invoices to Rhino 4x4 AU the earliest dated 23 June 2015 (‘Invoices’). I note that the Trailmax invoices do not refer to any trade mark and the Rhino 4x4 AU invoices refer to RHINO 4x4 but not the Trade Mark. I also note that the Trailmax invoices itemise the goods ‘bumpers, rocksliders, flat protection kits, stirrups, bar headlight holders and grilles’ and most also include various vehicle models. The Rhino 4x4 AU invoices itemise the goods ‘bumpers, rocksliders, bar headlight holders, side panels, casings for bumpers’ and most invoices also include various vehicle models.

32. Pereyra provides approximate confidential annual sales figures for the Used Goods in Australia 2014 from 2019. I note an increase in sales year on year.

    Kokulan

33. Kokulan provides the results of Google searches conducted in 2024 for use of the word ‘Rhino’ in connection with the words ‘vehicles’, ‘accessories’ or ‘protection’ and searches of the Australian trade mark register for trade mark applications and registrations, including live and dead marks, that contain the word RHINO.

34. Kokulan also claims that the term RHINO is used as a brand, or part of a brand, for some companies or their products, providing a table of nine such companies or their products and exhibiting website extracts obtained in 2024.

    EIR

1. Radford states that the Used Goods are sold in the same stores side-by-side as the Opponent’s Goods. Radford exhibits:

   ·     undated photos claimed to be from some of the Opponent’s authorised dealer stores showing these goods being displayed. I note that there is no indication of the name of the dealer(s) but the photographs show different types of automotive accessories displayed in different areas in store;

   ·     hyperlinks to nine websites, six of which are New Zealand websites;[11] and

   ·     screenshots from the websites of some of the Opponent’s dealers dated 3 July 2024 claimed to show that aftermarket 4x4 accessory goods such as protection equipment and roof racks are available through the same online stores. I note that all except one of the websites are for dealers located in New Zealand and not Australia. The one screenshot of an Australian dealer is headed ‘4x4 Products, Services and Accessories in Brisbane’.

   [11] I note that all evidence filed with this office must be in the form of declarations with annexures or exhibits. Hyperlinks can change or become dead and I have not clicked on or had regard to any of the hyperlinks unless the complete screenshot results of that hyperlink is annexed or exhibited.

2. Radford attests that the Applicant already offers roof mounted goods, exhibiting screenshots from the Rhino Website dated 3 July 2024 showing the sale of the same type of accessory goods available from the Opponent. I note the only obviously roof mounted goods are light bars which display the Trail Max trade mark.

3. Radford claims that third-party traders issue catalogues and have on their websites goods branded with the Word Mark on one page and bull bars on the opposite page, exhibiting a page from an undated Autobarn catalogue and an undated and unnamed page claimed to be from the website of ARB.

4. Mr Radford declares that images used by the Applicant and/or the Applicant’s dealers show vehicles which display both Applicant’s Goods and the Opponent’s Goods exhibiting three undated photographs claimed to be from the Rhino Website and the websites and I note that the Trade Mark and the Word Mark are only legible in one photograph.

5. Mr Radford claims that after reviewing the details of the Applicant’s dealers, he is aware that at least 38% of its dealers deal directly with the Opponent.

6. Mr Radford states he is aware from reviewing the details of the trade shows attended by the Applicant that the Opponent attended most shows at the same time and at the same venue, exhibiting an exhibitor list from the 2014 Adelaide 4WD and Adventure Show, where I note there is reference only to the Opponent, and exhibiting photographs showing the Opponent’s stand at the 2017 Adelaide 4WD and Adventure Show, 2016 Adelaide 4WD show and 2015 Melbourne 4x4 show.

   Discussion and reasons

   Section 60

7. Section 60 provides:

   Trade 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.

8. Regardless of whether the Applicant is an honest concurrent user under s 44(3)(a), there is no honest concurrent use exception to s 60.[12] Section 44 and s 60, are separate, stand‑alone grounds of opposition. In McCormick & Co Inc v McCormick[13] (‘McCormick’), Kenny J held that s 60 operates independently of s 44(3), and that s 44(3) does not provide an exception to the operation of s 60. Therefore, if the Opponent is successful under this ground, the opposition will succeed.

   [12] Sensis Pty Ltd v Senses Direct Mail and Fulfillment Pty Ltd [2019] FCA 719, [82]-[86] (Davies J).

   [13] McCormick & Co Inc v McCormick [2000] FCA 1335 (Kenny J) (‘McCormick’).

9. To establish this ground, the Opponent must demonstrate the existence of another trade mark(s) which had acquired a reputation in Australia before the Relevant Date. The Opponent must then establish that because of this reputation, use of the Trade Mark would be likely to deceive or cause confusion.

10. In summary, the SGP identifies the Opponent’s Registrations claiming that these marks have been continuously used in Australia since 1992 in respect of the sale of spare parts, automotive accessories, retailing and wholesale services associated with the sale and distribution of after-market accessories. The Opponent’s Registrations had acquired a substantial reputation in respect of these goods and services in Australia before the Relevant Date. Based on the renown and reputation acquired by the Opponent in the Opponent’s Registrations, and the fact that the Trade Mark is substantially identical with or deceptively similar to the Opponent’s Registrations, the use of the Trade Mark would be likely to deceive or cause confusion.

    Reputation

11. The meaning of reputation was considered by Kenny J in McCormick as referring to ‘the recognition of the [trade mark] by the public generally’.[14]

    [14] Ibid [81].

12. Further, Kenny J stated in McCormick that:

    In practice, it is commonplace to infer reputation from a high volume of sales, together with substantial advertising expenditures and other promotions, without any direct evidence of consumer appreciation of the mark, as opposed to the product ... public awareness of and regard for a mark tends to correlate with appreciation of the products with which that mark is associated, as evidenced by sales volume, amongst other things.[15]

    [15] Ibid [86].

13. The reputation in the other trade mark must be amongst a ‘significant or substantial’ number of Australian consumers but this is tempered by the nature of the relevant market.[16] Here the relevant market is the automotive accessories and spare parts market and as such, is likely to include a number of Australian households. Meanwhile, the ‘existence and extent of reputation’ must be established as a matter of fact by the Opponent.[17]

    [16] See, eg, Renaud Cointreau & Cie v Cordon Bleu International Ltee [2001] FCA 1170, [75] (Moore, Tamberlin and Goldberg JJ).

    [17] ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159, [57] (Lockhart, Gummow and French JJ).

14. In Rodney Jane Racing Pty Ltd v Monster Energy Company, it was observed that:

    The reputation of a trade mark has quantitative and qualitative dimensions. The quantitative dimension concerns the breadth of the public that are likely to be aware of the mark, which can be evidenced by the quantum of sales, advertising and promotion of goods or services to which the mark is applied. The qualitative dimension concerns the image and values projected by the trade mark, which affects the esteem or favour in which the mark is held by the public generally.[18]

    [18] [2019] FCA 923, [83] (O’Bryan J).

15. The Opponent submits that the Opponent’ reputation in the Opponent’s Registrations is well established and supported by the evidence. The Opponent further submits that the automotive goods sold by the Opponent include roof carriers, roof bars and mounts, roof trays, work solutions (such as ladder rack systems), awnings and parts and fittings.

16. The Opponent’s submissions rely on the use and reputation in the following trade marks: Word Mark, Rhino Mark, 068 Mark, 991 Mark and . While the Opponent bases the s 60 ground on these marks, notably, each is considered a separate trade mark for the purposes of s 60.[19]

    [19] Ibid [89]; Qantas Airways Ltd v Edwards [2016] FCA 729, [160] (Yates J) (‘Qantas’).

17. While the Opponent’s claimed use began in 1992, I note that this early use was by Fetovu, the business of which was claimed to be acquired by the Opponent. On the basis that no supporting evidence nor a date of the purchase of the business and associated goodwill of Fetovu has been provided by the Opponent, the Opponent was not incorporated until 15 November 2006, and all evidence of invoices prior to 21 August 2008 are in the name of Fetovu,[20] I am not satisfied that the Opponent can rely on the use by Fetovu and any goodwill and reputation which may have been generated by Fetovu from 1992 to 2008.

    [20] Fernandez Exhibit EF-3.

18. However, even excluding the evidence of use by Fetovu, I am satisfied that the Opponent’s evidence shows significant use of the Word Mark, the 068 Mark, the 991 Mark and . As such, I am satisfied each of these marks had the necessary reputation at the Relevant Date.

19. I am not however satisfied that there was significant use of the Rhino Mark such that the Rhino Mark had the necessary reputation in Australia at the Relevant Date. There is only very limited evidence of use of the Rhino Mark which is considerably dwarfed by the use of the Word Mark, the 068 Mark, the 991 Mark and .

20. As s 60 requires I consider one earlier mark (or at least, one mark at a time), for present purposes it is sufficient that I focus the remaining enquiry on the Word Mark.

21. On the basis of the evidence provided by the Opponent, I am satisfied that at the Relevant Date, the Word Mark had acquired a reputation in Australia amongst a significant number of consumers. The reputation enjoyed by the Word Mark can be readily inferred from the extensive sales and advertising expenditure figures disclosed together with the extensive marketing and advertising activities detailed in the Opponent’s evidence. Further the Opponent’s Goods have a profile nationally being sold through a multitude of authorised dealers Australia wide.

22. The Applicant submits that the Opponent has not provided evidence of a reputation of the Word Mark in respect of all automotive goods and accessories, and I agree. I am only satisfied that the reputation in the Word Mark extends to the Opponent’s Goods, which appear consistently in the range of goods in the Opponent’s catalogues and brochures from 2010.

23. Further, public awareness of the Word Mark is apparent in the significant amount of advertising and promotion including catalogues, promotional materials, magazines including online, brochures, flyers, third party catalogues, social media, the TV shows and expo stands at several national trade shows.

24. Accordingly, as I am satisfied that the Word Mark has a reputation in relation to the Opponent’s Goods in Australia before the Relevant Date, pursuant to s 60(b), consideration must now be given to whether, because of this reputation, use of the Trade Mark would be likely to deceive or cause confusion.

    Likely to deceive or cause confusion

25. The concepts of ‘deceived’ and ‘confusion’ were considered in the New Zealand case of Pioneer Hi-Bred Corn Co v Hy-Line Chicks Pty Ltd wherein Richardson J observed:

    “Deceived” implies the creation of an incorrect belief or mental impression and causing “confusion” may go no further than perplexing or mixing up the minds of the purchasing public. Where the deception or confusion alleged is as to the source of the goods, deceived is equivalent to being misled into thinking that the goods bearing the applicant's mark come from some other source and confused to being caused to wonder whether that might not be the case.[21]

    [21] [1979] RPC 410, 423 (citation omitted).

26. The likelihood of deception or confusion must be real and tangible.[22] The test for confusion under s 60 is not limited to whether consumers might think that the respective marks are the same. It is sufficient ‘if people would have cause to wonder’ whether the Applicant’s Goods appearing in relation to the Trade Mark were being provided by the Opponent.[23] To this end, it has been observed that ‘the threshold for confusion is not high’[24] and confusion can be established even if it ‘is unlikely to persist up to the point of, and contribute to, inducing sale’.[25]

    [22] Southern Cross (n 4), 595.

    [23] Insight Radiology Pty Ltd v Insight Clinical Imaging Pty Ltd [2016] FCA 1406, [76] (Davies J).

    [24] Australian Postal Corporation v Digital Post Australia [2013] FCAFC 153, [70] (North, Middleton and Barker JJ).

    [25] Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252, [105] (Dodds-Streeton J).

27. Here the relevant comparison is between the reputation of the Word Mark and a notional normal and fair use of the Trade Mark in respect of each of the Applicant’s Goods.

28. There is no requirement to demonstrate that the trade marks in question are substantially identical or deceptively similar within the meaning of Act. Nevertheless, it has been observed that:

    Confusion cannot arise solely from the reputation of one trade mark. There must always remain a level of similarity between the marks, whether we call it deceptive similarity or something less, and no matter how small it might be. The likelihood of confusion must depend on the reputation of the opponent’s trade mark, but have regard (amongst other factors) to the level of similarity of the goods/services and the degree of similarity of the trade marks, greater or smaller.[26]

    [26] Rogers Seller & Myhill Pty Ltd v Reece Pty Ltd [2010] ATMO 5, [39] (Hearing Officer Lyons), (emphasis in original). See also Qantas (n 19), [142].

29. In summary, here the assessment of the likelihood of deception or confusion is informed by the strength of the reputation of the Word Mark, the inherent distinctiveness thereof, the degree of similarity between the trade marks under consideration and the nexus or connection between the goods of the parties. Each of these is a variable.

30. With respect to the degree of similarity between the respective marks, both parties submissions refer to the concept of deceptive similarity.

31. The Opponent submits that visually and aurally the Trade Mark is deceptively similar to the Opponent’s Marks on the following bases:

    ·the dominant and distinctive feature of each of the Trade Mark and the Opponent’s Marks is the word RHINO, being the first word in each of the Opponent’s Marks and in the Trade Mark and the word most likely to be recalled and articulated when referring to the marks;

    ·the word RACK in the Opponent’s Marks and the element 4x4, which appears in very small font in the Trade Mark, are descriptive and are therefore more likely to be disregarded;

    ·three of the Opponent’s Marks feature a drawing of a rhinoceros and the Trade Mark features a rhinoceros head device in the centre of the letter O. These device elements give further significance to the word RHINO in each of these marks;

    ·as to the Applicant’s evidence of other parties using the word RHINO or a rhinoceros device including a number of Australian registered trade marks that feature the word ‘rhino’ for their goods,[27] including for automotive-related goods, the Opponent submits that the evidence is irrelevant or carries little weight;

    ·consumers are likely to confuse the Trade Mark and the Opponent’s Marks due to the close similarity between the Applicant’s Goods and the Opponent’s Goods; and

    ·the Opponent is aware of instances of actual confusion.

    [27] Kokulan [5] to [10]; Exhibits IK-11 to IK-15.

32. The Applicant submits that visually, aurally and conceptually, the Trade Mark is not deceptively similar to the Opponent’s Marks on the following bases:

    ·the impression and recollection of the Opponent’s Marks is not merely the word RHINO but RHINO-RACK and the word RACK should not be disregarded;

    ·the words RHINO-RACK are presented, pronounced, and conceptualised essentially as one compound hyphenated word, thereby communicating the meaning of a rack with the strength of a rhino. This hyphenation makes it significantly more likely that consumers will recall both words as one phrase, as opposed to just recalling the first half of the mark;

    ·the alliteration in RHINO-RACK draws the consumer’s attention and eye to both component words making the recollection of both words together much more likely relying on Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 3);[28]

    ·other than the word RHINO, the Opponent’s Marks and the Trade Mark do not share any distinctive features;

    ·the words RACK and 4x4 are conceptually dissimilar, RACK connecting an item used to hold or store objects and 4x4 connoting four-wheel-driving or off-road adventures;

    ·the Trade Mark has visual differences which are likely to be recalled including the placement of the 4x4 element, the foot of the letter R underlining the majority of the Trade Mark, the image of a rhinoceros head and not a full rhinoceros, the rhinoceros head forming the centre of the letter O and the font;

    ·the word Rhino is an ordinary English word used to connote strength, power and endurance and is commonly used by other traders, referring to the number of Australian registered trade marks that feature the word rhino for their goods,[29] including for automotive-related goods; and

    ·the Trade Mark has also co-existed in the Australian market with the Opponent’s Marks since 2013, without a single documented instance of actual consumer confusion.

    [28] [2017] FCA 865 (Mortimer J).

    [29] Kokulan [5] to [10]; Exhibits IK-11 to IK-15.

33. In respect of the Applicant’s submission that the word RHINO is an ordinary English word used to connote strength, power and endurance, I agree that RHINO is an ordinary English word but I do not agree that RHINO connotes strength, power and endurance. RHINO is defined in the Macquarie Dictionary Online as a rhinoceros. There is no evidence to suggest that RHINO has the connotation submitted by the Applicant. In my view the word RHINO is inherently distinctive.

34. As to the inherent distinctiveness of the Word Mark, the Applicant’s evidence that other traders have registered trade marks that feature the word RHINO for their goods, including for automotive-related goods, is largely irrelevant to this inquiry.[30] I do not find the existence of these earlier registrations at all persuasive. The state of the register does not inform what is actually happening out in the market. While I note that the trade marks referred to by the Applicant indicate a propensity for traders to seek registration for trade marks that feature the word RHINO for their goods, this evidence does not establish that the goods registered are the same as or closely related to the Opponent’s Goods.

    [30] Ocean Spray Cranberries Inc v Registrar of Trade Marks [2000] FCA 177, [35] (Wilcox J).

35. In respect of the Applicant’s evidence of use of RHINO related trade marks by others in Australia for automotive vehicle goods,[31] I also do not find this evidence persuasive. There are numerous reasons why trade marks may co-exist, and I consider it an unwarranted distraction from the task at hand to investigate the particular circumstances of co-existence. Additionally, while this evidence included screenshots from nineteen websites, in the Applicant’s submissions, the Applicant only references screenshots from ten websites.[32] Of these ten websites, all the screenshots are undated and of those which contain copyright claims, all bar one contain claims for 2024. The remaining one contains a claim for 2000 – 2024 which refers to mining truck linings. While the Applicant’s evidence shows that only one of the trade marks appearing in the screenshots is registered in Australia, such registration is for a different trade mark to that appearing in the screenshot.[33] Finally, it is unclear whether one of the screenshots is from an Australian website.[34]

    [31] Kokulan [4] and [11] Exhibits IK-1 to IK-10 and IK-16 to IK-24.

    [32] Applicant’s submissions Schedule 1, being Exhibits IK-2 to IK-9, IK-19 and IK-24.

    [33] Kokulan Exhibit 6.

    [34] Kokulan Exhibit [8].

36. I am mindful that the Relevant Date for determining s 60 is 15 July 2019. The website screenshots provided by the Applicant do not provide any indication of the state of the marketplace as at this date. This evidence does not assist in informing me of the state of the marketplace in Australia as at the Relevant Date and therefore does little to support the Applicant’s submission that the word RHINO is commonly used by other traders particularly for automotive goods. Therefore, I am satisfied that the Word Mark is inherently distinctive.

1. In my view, both the Trade Mark and the Word Mark are dominated visually by the shared element RHINO. This shared word is well adapted to distinguish automotive accessories and spare parts. In the Word Mark, RHINO is a distinctive word which is followed by a hyphen and the word RACK, being descriptive of racks for vehicles. The RHINO element strikes at the eye and fixes itself in the recollection. The Trade Mark includes three elements: the distinctive word RHINO rendered in stylised script; a rhinoceros head device in the letter O which, in my view, only serves to reinforce the word Rhino; and the element 4x4 which is descriptive of the Applicant’s Goods being for 4x4 vehicles (also known as 4WD vehicles).[35] It seems to me that these added features do not give the Trade Mark an immediate and obvious meaning that avoids any prospect of confusion.

   [35] The Applicant’s submissions at [58] state that 4x4 denotes 4-wheel-drive capability.

2. Further, I am of the opinion that both the Trade Mark and the Word Mark convey the same idea, that is, the idea of a rhinoceros

3. While the hyphen between the words RHINO and RACK and the alliteration of these two words cannot be ignored, considered as a whole, I believe the impression of the Word Mark will be the word RHINO. The descriptiveness of the word RACK weighs against a consumer placing equal emphasis, visually and aurally, on both words RHINO and RACK in the Word Mark. As such, I do not consider that both the words RHINO and RACK are of equal importance or would be viewed by the consumer as equally important and thereby equally recollected.

4. In respect of the Opponent’s submission that the Opponent is aware of instances of actual confusion, this submission relies solely on the letter of demand sent to the Applicant in 2022.[36] The letter of demand referred to ‘A number of customers has since contacted Rhino Rack enquiring whether the products displayed were originating from Rhino Rack or authorised for use by Rhino Rack.’ In my view a letter of demand is not evidence of actual confusion. Absent a declaratory statement from the Opponent’s customers attesting to their confusion or even a declaratory statement by the person(s) contacted by these customers detailing the nature of the customers enquiries, I find there is no support that there are instances of actual confusion in the marketplace.

   [36] Clarke [56] and [57] Exhibit 21.

5. What is left to consider is the nexus or connection between the goods of the parties. Section 60 does not depend for its success on any requirement that the parties operate in the same field of business, nor that the compared goods be the same, similar or closely related. Nonetheless, it is clear that the likelihood of confusion will depend in part on the proximity of the Applicant’s Goods to the scope of the reputation of the Opponent’s Marks. While the differences between the goods are not decisive, it is generally more difficult to demonstrate that use of a trade mark in an entirely different field of activity would be likely to deceive or cause confusion.

6. There is no dispute that the Applicant’s Goods and the Opponent’s Goods fall within the automotive products or automotive accessories category. However automotive products or automotive accessories describe a diverse range of goods from car air fresheners to floor mats to bull bars to roof racks. The Applicant submits that the Opponent has only provided evidence of use for a sub category of automotive goods namely load carrying solutions and roof rack accessories and thus there is no strong connection or nexus with the Applicant’s Goods which are in a different sub category, being vehicle protection goods.

7. The evidence shows that both the Applicant’s and Opponent’s distributors attend the same trade shows and the parties’ products are available through the same bricks and mortar and online stores. Further, both parties’ goods are for use on vehicles, particularly 4WD vehicles and as such, the customer base is likely to overlap. While the uses to which the respective parties’ goods are put differ, these goods cannot be described as ‘very different’ given they are all automotive accessories.

8. The Opponent submits that due to the similarities between the marks themselves, the similarities between the goods provided under and with respect to the marks, and the significant overlap in the areas of use of the marks, there is a real and tangible danger that consumers aware of the significant reputation of the Word Mark would be caused to wonder whether goods sold under or by reference to the Trade Mark are a complementary product to the Opponent’s Goods or are a brand extension of the Opponent in respect of the Applicant’s Goods.

9. The Opponent refers to the comments in Kodak (Australasia) Pty Ltd’s Application[37] concerning ‘the well-known trade practice of traders in adopting a certain word as a trade mark and constructing other trade marks for distinguishing characteristics of their goods by using such word as a basis and adding thereto’ and CSR Building Products Ltd v Saint-Gobain Construction Products UK Ltd (‘CSR’),[38] where the Hearing Officer held that consumers seeing the mark GYPFRAME ‘would at least be caused to wonder whether it is associated with the Opponent or is one of its brand extensions’ in respect of the Opponent’s GYPROCK range.

   [37] (1936) 6 AOJP 1724.

   [38] (2021) ATMO 591, [33] (Hearing Officer Cooper).

10. The Applicant submits that CSR is distinguishable from the present case as the evidence established ‘a very strong reputation’ in the GYPROCK marks for a range of goods and services and GYPROCK was an invented word with a high degree of distinctiveness.[39] Here the Applicant submits that the Opponent has only provided evidence of use for a sub category of automotive goods namely load carrying solutions and roof rack accessories and thus there is no strong connection or nexus with the Applicant’s Goods which are in a different sub category. The Applicant further submits that RHINO is not a highly distinctive word but rather a commonly used word in the automotive goods trade.

    [39] Ibid [27].

11. In my view, as with the GYPROCK mark in CSR, the Word Mark has both a strong reputation and a high degree of distinctiveness. Therefore, I disagree with the Applicant that CSR is distinguishable from the present case.

12. Further, while I note the comments in Kodak (Australasia) Pty Ltd’s Application, there is no evidence before me that there is a practice of traders in the automotive accessories and spare parts trade adopting a certain word as a trade mark and constructing other trade marks for distinguishing characteristics of their goods by using such word as a basis and adding thereto.

13. There is also no evidence before me that the customers for the respective parties’ goods are especially discerning or would take great care in their choices, although I do note from the evidence that automotive accessories and spare parts vary greatly in price from a low-priced bracket to a higher priced roof rack or bull bar. I consider that while consumers would appreciate and understand the differences between the uses of the respective parties’ goods, I am satisfied that given the extent of the reputation acquired by the Word Mark, the similarity of the trade marks and the nexus between the goods, there is a real tangible danger that a significant number of consumers would, at the very least, experience a reasonable doubt as to the existence of some sort of connection between the Word Mark and the Trade Mark, such as the Opponent expanding or diversifying its range of automobile accessories and spare parts into vehicle protection.

14. As I am satisfied that there is a real and tangible danger that use of the Trade Mark would be likely to cause confusion amongst a substantial number of relevant consumers, the
    s 60 ground of opposition has been established.

15. I also add that with respect to the 991 Mark, in which the Opponent also has a significant reputation, the only obvious difference between the Word Mark and this mark is the rhinoceros device. In my opinion, the addition of the rhinoceros device is merely an illustration of the distinctive word RHINO, and the work it does in the 991 Mark is to reinforce the suggestion of a rhino.[40]

    [40] E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15, [69] (French CJ, Gummow, Heydon, Crennan and Bell JJ).

16. Whilst a consumer is more likely to refer to a word in a trade mark which is a combination of a device and a word, rather than attempt to remember or describe the detail of a device element, where the device element is an illustration of the word, such a device element will only emphasise the word in the mind of the notional consumer.

17. Given that the Trade Mark also contains a device of a rhinoceros head, in my view, as with the rhinoceros device in the 991 Mark, this rhinoceros head can only serve to emphasise the word RHINO and therefore enhance the real tangible risk of the likelihood of the consumer being caused to wonder whether it might not be the case that the Applicant’s automotive accessories and parts bearing the Trade Mark are from the same source as such goods bearing the 991 Mark.

100.Having found the s 60 ground of opposition established, it is unnecessary that the remaining grounds be considered.

Decision

101.Section 55 relevantly provides:

Decision

(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.

102.The Opponent has established on the balance of probabilities the ground of opposition under   s 60. Accordingly, I refuse to register the Trade Mark. If the Registrar is served with a notice of appeal, 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

103.The Opponent has sought costs. I see no reason to depart from the general rule that costs follow the event. I accordingly award costs against the Applicant under s 221 in the relevant amounts under Schedule 8 of the Regulations.

Anne Makrigiorgos

Hearing Officer

Oppositions and Hearings

Trade Marks and Designs

23 April 2025

Annexure A

Number

Goods and services

603068

Class 12: Metal & plastic roof racks for use on vehicles

1347991[41]

Class 6: Cable straps of metal; straps of metal; straps, bands, braces, cables and harnesses impregnated with metal, straps lined with metal; metallic webbing straps; metallic webbing belts for handling loads; protective metal edging for straps; braces, belts, bands, cables and harnesses, of metal for handling loads; cam buckle tighteners of metal; pipe clamps of metal; winch tensioners of metal; straps, bands, braces, cables and harnesses reinforced with metal

Class 12: Automotive spare parts and accessories including non-electrical automotive accessories namely roof racks, ski carriers, water craft carriers, sporting goods carriers, ladder carriers, bike carriers, luggage carriers, roof top boxes and mountings for roof racks and roof bars; vehicle and trailer hitches; trailer hitch receivers; cargo carriers for vehicles and trailers; truck bed extenders; trailers for vehicles; trailer hitch mounts and balls, sway controls, hitch balls, hitch ball covers, couplers, safety chains, clips, tow hooks, pintle hooks, pole tongue adapters, and towing bars; bicycle carriers; bicycle carrier adapters; torsion hitch kits including receiver tubing, receiver tube covers, hook-up brackets; hitch boxes, bolts and angles; license plate brackets, hood shields, vehicle side window vent shades, tube steps, brush bars, tonneau covers, truck bed covers, tail-light covers, vehicle side window louvres, cargo carrier nets, cargo barriers, dog guards, roof rails and side view mirrors; hub caps; vehicular transmission coolers and mounting brackets therefor; vehicle canopies and hardtops

Class 22: Awnings for tents; bags made of textile for the storage of tents; camping tents; tents; tents (awnings) for caravans; tents (awnings) for vehicles; tents for camping; tents for mountaineering; tents for use as an adjunct to vehicles; tents made of textile materials; awnings; awnings of synthetic materials; awnings of textile; beach awnings and canopies, not of metal; canopies (awnings); market awnings and canopies, not of metal; shade awnings and canopies, not of metal; tents (awnings) for caravans; tents (awnings) for vehicles; canopy awning incorporating a clothesline

1626038

Class 12: Roof top carriers for vehicles; Roof bars for vehicles

1715154

Class 6: Lock barrels of metal; Lock bolts; Locks (other than electric) of metal for vehicles; Locks of metal for vehicles; Locking apparatus (non-electric) of metal; Metal releasable locking devices (non-electric); Keys; Security devices (locks) of metal for vehicles

Class 20: Lock barrels, not of metal; Lock bolts, not of metal; Locks, not of metal, for vehicles; Non-metallic combination locks for vehicles; Non-metallic keys for opening locks; Locking apparatus (non-electric), not of metal; Non-metallic releasable locking devices (non-electric); Plastic keys

1959310[42]

Class 6: Metal accessories for automobiles namely, carry bars, cargo bars, cargo securing systems, hooks; pipe clamps of metal; winch tensioners of metal; straps, bands, braces, cables and harnesses reinforced with metal; lock barrels of metal; lock bolts; locks (other than electric) of metal for vehicles; locks of metal for vehicles; locking apparatus (non-electric) of metal; metal releasable locking devices (non-electric); keys; cable straps of metal; security devices (locks) of metal for vehicles; straps of metal; straps, bands, braces, cables and harnesses impregnated with metal, straps lined with metal; metallic webbing straps; metallic webbing belts for handling loads; protective metal edging for straps; braces, belts, bands, cables and harnesses, of metal for handling loads; cam buckle tighteners of metal

Class 12: Automotive spare parts and accessories including non-electrical automotive accessories namely roof racks, roof bars for vehicles, ski carriers, water craft carriers, sporting goods carriers, ladder carriers, bike carriers, luggage carriers, roof top boxes and mountings for roof racks and roof bars; vehicle and trailer hitches; trailer hitch receivers; cargo carriers for vehicles and trailers; truck bed extenders; trailers for vehicles; trailer hitch mounts and balls, sway controls, hitch balls, hitch ball covers, couplers, safety chains, clips, tow hooks, pintle hooks, pole tongue adapters, and towing bars; bicycle carriers; bicycle carrier adapters; torsion hitch kits including receiver tubing, receiver tube covers, hook-up brackets; hitch boxes, bolts and angles; license plate brackets, hood shields, vehicle side window vent shades, tube steps, brush bars, tonneau covers, truck bed covers, tail-light covers, vehicle side window louvres, cargo carrier nets, cargo barriers, dog guards, roof rails and side view mirrors; hub caps; vehicular transmission coolers and mounting brackets therefor; vehicle canopies and hardtops

Class 22: Awnings for tents; bags made of textile for the storage of tents; camping tents; tents; tents (awnings) for caravans; tents (awnings) for vehicles; tents for camping; tents for mountaineering; tents for use as an adjunct to vehicles; tents made of textile materials; awnings; awnings of synthetic materials; awnings of textile; beach awnings and canopies, not of metal; canopies (awnings); market awnings and canopies, not of metal; shade awnings and canopies, not of metal; tents (awnings) for caravans; tents (awnings) for vehicles; canopy awning incorporating a clothesline; Load securing devices including ropes and elastic straps; tents including, inflatable tents, tents made of textile material, tents for camping, tents for use adjacent to vehicles, tarpaulins, awnings in this class for tents and caravans; bags for tents; and parts and accessories in this class for the aforesaid goods; swags; tarpaulins; coverings (not shaped) for vehicles or portions of vehicles made from leather or imitations of leather, including vinyl

1959891

Class 8: Hand tools and implements (hand operated), shovels, torque tool

Class 18: Travelling bags, luggage bags, including belts and straps for luggage

Class 20: Fastening devices including hooks and clamps of plastic for use with motor vehicles; boxes, cases and containers, namely, storage boxes, cases and containers, cargo cases, plastic luggage cases and boxes; none of the foregoing being in the nature of tool boxes, tool cabinets, tool storage containers or parts thereof

Class 25: Clothing, headgear; jackets, caps, shirts, jumpers, wind breakers, socks, underwear, driving suits and overalls

Class 35: Online retail store services featuring outdoor and travel equipment, sporting products, outdoor gear, recreational products, vehicle racks, carriers, and organizers, carriers and covers for electronic products, luggage, bags, backpacks, clothing and accessories, and strollers, seats, trailers, and carriers for children; Retail store services featuring outdoor and travel equipment, sporting products, outdoor gear, recreational products, vehicle racks, carriers, and organizers, carriers and covers for electronic products, luggage, bags, backpacks, clothing and accessories, strollers, seats, trailers, and carriers for children.

[41] Endorsements: Provisions of subsection 44(4) and/or Reg 4.15A(5) applied and Provisions of paragraph 44(3)(b) and/or Reg 4.15A(3)(b) applied.

[42] Endorsement: Provisions of subsection 44(4) and/or Reg 4.15A(5) applied.

Annexure B

Number	Goods	Priority date	Lapsing date
1636984	Class 9: Electric and electronic controllers; batteries, including solar chargeable batteries; battery chargers, including solar powered chargers; battery controllers including dual battery controllers; battery charging controllers; electric and electronic controllers for vehicles, including brake controllers; wiring and controllers for use in retrofitting rear bars for vehicles; wiring and controllers for mounting in, with or through bull bars and protection systems; temperature controllers; data logging apparatus; controllers for use in data logging apparatus; electric and electronic display apparatus; controllers for use in electric and electronic display apparatus; stability controllers for vehicles; harness wiring; wiring controllers; wiring looms and harnesses for vehicles (electric cables); lights including LED driving lights, fog lights, accessory lights; none of the aforementioned being for anti-theft or security purposes Class 12: Bullbars, siderails and rearbars, underbody protection plates and rollbars for protecting vehicles; protectors and guards for headlamps and vehicle body parts; frontal vehicle protection equipment including bull bars and front replacement bars; side vehicle protection including rock sliders for vehicles; rear vehicle protection including rear bars; underbody protection plates (bash plates); rollbars and roll cages for protecting vehicles; vehicle recovery equipment including winches, drag chains, shackles, anchor straps, snatch blocks, snatch straps and tow lines; snow chains; flares for vehicle wheel arches; fuel tanks for vehicles; parts and accessories in this class for the aforementioned	24 July 2014	27 May 2016
1772785[43]	Class 12: Bullbars, siderails and rearbars, underbody protection plates; protectors and guards for vehicle body parts; frontal vehicle protection equipment including bull bars and front replacement bars; side vehicle protection including rock sliders for vehicles; rear vehicle protection including rear bars; underbody protection plates (bash plates); flares for vehicle wheel arches; fuel tanks for vehicles; parts and accessories in this class for the aforementioned	24 July 2014	3 March 2018
1910833[44]	Class 12: Bullbars, siderails and rearbars, underbody protection plates; protectors and guards for vehicle body parts; frontal vehicle protection equipment including bull bars and front replacement bars; side vehicle protection including rock sliders for vehicles; rear vehicle protection including rear bars; underbody protection plates (bash plates); flares for vehicle wheel arches; parts and accessories in this class for the aforementioned	24 July 2014	19 December 2019
2058817[45]	Class 12: Bullbars, siderails and rearbars, underbody protection plates; protectors and guards for vehicle body parts; frontal vehicle protection equipment including bull bars and front replacement bars; side vehicle protection including rock sliders for vehicles; rear vehicle protection including rear bars; underbody protection plates (bash plates); parts and accessories in this class for the aforementioned	25 July 2014	20 March 2021

[43] This application was a divisional of trade mark number 1636984.

[44] This application was a divisional of trade mark number 1772785.

[45] This application was a divisional of trade mark number 1910833.