Sanyo Chemical Industries Ltd v Nuplex Industries (Aust) Pty Ltd
[2005] ATMO 2
•31 January 2005
TRADE MARKS ACT 1995
DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re: Opposition by Sanyo Chemical Industries Ltd to application under section 92 of the Act by Nuplex Industries (Aust) Pty Ltd to remove trade mark number 221154(1) - Newpol - in the name of Sanyo Chemical Industries Ltd
DELEGATE: Terry Williams REPRESENTATION: Opponent: Ben Fitzpatrick of counsel instructed by Davies Collison Cave patent attorneys
Applicant: Sophie Goddard of counsel instructed by Phillips Fox, solicitorsDECISION: S 92(4)(b) - opposition - goods to be restricted to accord with use on invoices – opponent to pay costs Background
1. Sanyo Chemical Industries Ltd (Sanyo) is the registered owner of trade mark number 221154, which consists of the word NEWPOL. The trade mark is registered in respect of “all goods included in Class 1, including polyether polyols and derivatives thereof, defoamers”.
2. Nuplex Industries (Aust) Pty Ltd (Nuplex) has applied to register the trade mark NUPOL. It argues that it intends to use its own trade mark but apprehends that the Sanyo registration just referred to will constitute a barrier to its application. Accordingly Nuplex has applied to remove the Sanyo registration from the register on the ground that it was unused in the three year period 10 May 2000 to 10 May 2003. Such an application is provided for under s 92(4)(b) of the Trade Marks Act 1995 (the Act).
3. Sanyo, for its part, has opposed the removal of its trade mark from the register. The parties filed evidence to support and in answer to the opposition, and in reply. This is a process governed by part 9 of the Act and parts 9 and 5 of the regulations.
4. In addition, Nuplex has subsequently applied, under regulation 5.15, for permission to serve and rely on further evidence. Sanyo argues that such permission should not be given. Both that question and the substantive matter were assigned to me for hearing and decision under delegation from the registrar.
5. At the hearing, Sanyo was represented by Ben Fitzpatrick of counsel, instructed by Davies Collison Cave, patent attorneys. Nuplex was represented by Sophie Goddard of counsel, instructed by Phillips Fox, solicitors.
Preliminary question: the further evidence.
6. The further evidence consists of a single declaration by Alfred Wojcenski, the information in which is said to establish the standing of Nuplex to bring the application under s 92. The two representatives were in no doubt about the seriousness of the issue here: Sanyo would prefer that the removal application be decided at the threshold, rather than on the merits. Such, of course, is its entitlement and, like any other removal opponent, it is also entitled to quote the clichéd case law about vexatious removal applications and the importance of the removal applicant having proper standing as a person aggrieved. The Notice of Opposition filed by Sanyo clearly impugned Nuplex for lack of standing as a person aggrieved. Sanyo thus prepared the ground for such a tactic and Nuplex was late to see the trap. The evidence in answer filed by Sanyo is silent on the question and, as Mr Fitzpatrick’s written submissions put it:
If special leave (sic1) to file the Statutory Declaration of Alfred Wojcenski as further evidence is not allowed, the removal applicant has not established that it is a person aggrieved.
7. Ms Goddard, for her part, relied on the history of the matter as supporting a benevolent application of the provisions. Here she relied on the claim, made in the removal application, that Nuplex was in fact a person aggrieved. She also referred to the text of the declaration that, when the application was made, Nuplex filed in compliance with reg 9.1. The relevant regulation provides that the removal application:
must be accompanied by a declaration made by, or on behalf of, the applicant:
(i) stating that an inquiry into the use of the trade mark has been conducted by, or on behalf of, the applicant; and
(ii) setting out the findings of that inquiry that support the grounds referred to in subsection 92(4) of the Act in reliance on which the application is made.
8. The declaration in question was made by Simone Tierney, an employee of Phillips Fox, on 5 June 2003. The Trade Marks Office copied that declaration to the attorneys for Sanyo as is required by reg 9.2(2).
As Ms Goddard noted, Ms Tierney has declared:
It is anticipated that the trade mark (owned by Sanyo) will be cited against the Applicant’s trade mark upon examination.
9. Therefore, asserted Ms Goddard, the material in question was at least sufficient to put Sanyo on notice of the foundation of Nuplex’s claim to standing. However, the Tierney declaration is not part of the application. Nor, because it was not within the scope of regulation 5.9, is it part of the evidence of the present opposition process. Therefore, there is no clear route by which the applicant can claim that it is material on which it is entitled to rely in the opposition forum.
10. Ms Goddard noted, in the interest of strict accuracy, that the history of the Nuplex application is somewhat vexed. The trade mark application to which Ms Tierney presumably referred, 957553, filed on behalf of Nuplex by Phillips Fox on 12 June 2003, was subsequently withdrawn in view of an error made by Phillips Fox regarding the statement of goods. That was resolved when, the next day, an application was filed to correct the matter. This amendment ultimately gave rise to what is now application 958246. While I acknowledge this quirk of prosecution, I think it does not count against Nuplex to any significant degree. To all practical purposes, I will accept that the trade mark application Ms Tierney had in mind was in the terms of 958246, the later one with the correct statement of goods. The present registered trade mark has indeed been cited against that application. Ms Goddard, however, accepted that this state of affairs, anticipated by Ms Tierney, would not, in truth have established that standing. Her concession here is on all fours with the Full Federal Court decision in Kraft Foods Inc v Gaines Pet Foods Corporation (1996) 34 IPR 198 (Gaines).
11. None the less, Ms Goddard suggested that her client’s application for permission to bring in the Wojcenski declaration as further evidence was made only from an abundance of caution. She did not explain why this caution was only exercised two weeks prior to the hearing but, having said that, the timing of the application does not suggest that it was an attempt to ambush the lawyers for Sanyo. Nor is it suggestive of any high-handedness or discourtesy. I do however agree with her frank admission that the timing implies oversight, and indeed an oversight of which Phillips Fox has been aware since July 2004, the time at which, according to a solicitor2 employed by Phillips Fox, “I became aware that the Further Evidence was not included in the evidence in answer” and “immediately took all possible steps to collate and obtain the Further Evidence from the Applicant”.
12. Mr Fitzpatrick was quite critical of the present state of affairs. The evidence establishes that the material “could, and indeed should” have been obtained earlier. He said this was not consistent with the factors set out in Horphag Research Ltd v Schwitters (1997) 40 IPR 613 at 616. That, though, is not the end of the matter since, as the hearing officer said in Horphag:
In many decided cases on applications for special leave to adduce further evidence the criteria set out by Lord Denning in Ladd v Marshall [1954] 1 WLR 1489, a decision of the English Court of Appeal, have been applied. They are that:
•it should be shown that, with reasonable diligence, the evidence could not have been obtained earlier;
•it should be shown that the evidence is likely to have an important effect on the outcome; and
•the evidence should be credible.
However, in Studio SrL v Buying Systems (Aust) Pty Ltd (1991) 22 IPR 580 at 585; (1992) AIPC 90-858 I pointed out differences in the United Kingdom and Australian legislation in relation to the admission of further evidence on appeal from the registrar, in particular s 18(8) of the Trade Marks Act 1938 (UK):
(8) On the hearing of an appeal under this section any party may, either in the manner prescribed or by special leave of the Court, bring forward further material for the consideration of the Court.
I did not consider that the strict application of the rules in Ladd v Marshall were appropriate to an administrative tribunal such as the registrar because (at IPR 585):
… it is well established that an “appeal'’ from the registrar is not an appeal in the strict sense at all but within the original jurisdiction of the court: Jafferjee v Scarlett (1937) 57 CLR 115. The appeal is a hearing de novo and the court will not exclude further evidence or additional grounds.
The effect of refusing an application for special leave may therefore be to force an unsuccessful party to the opposition before the registrar into an appeal to the court where the evidence, if admissible, would not be excluded. Obviously it would be preferable for the matter to be finally decided by the registrar if the admission of further evidence would allow this to be done.
I then (at IPR 585) referred to the findings of Richardson J in Pioneer Hi-Bred Corn Co v Hy-line Chicks Pty Ltd, [1979] RPC 410, where (at 435–6), in relation to a matter of deception and confusion, his Honour said:
“Within reasonable limits it furthers that public interest to allow consideration of any available evidence that will assist in providing a clearer picture of the awareness of rival marks as affecting the likelihood of deception or confusion. Secondly, the evidence sought to be adduced is evidence that would assist in resolving ambiguities in material furnished to the assistant commissioner. Except for the evidence of Mr Waymouth, it does not attempt to break new ground and Mr Waymouth’s evidence provides, from official sources, relevant information as to the size of the market … And as put by Ungoed-Thomas J in Re “Bali” Trade Mark [1966] RPC 387 at 393:
… the proper course is to attach the main weight to the desirability of having the substantial issue satisfactorily and fully investigated.”
13. For my own part, I consider that, while Pioneer, supra, is not directly applicable, a similar conclusion should be. This is not a case where allegations of deception or confusion are at issue. This case concerns, at the start, only the use or otherwise of a registered trade mark. I think the main weight in a non-use matter should therefore be on deciding if the trade mark is unused and, prima facie, ought therefore to be removed from the register. While it cannot be said that the handling of the evidence stages in the present matter reflects particular credit on the lawyers for Nuplex, they have plainly admitted the error of the matter and sought to put it to rights. I would therefore be reluctant to reward the tactics employed by Sanyo in urging the determination of the substantive matter should be subverted by a failure of procedure.
14. At the hearing there was a degree of debate between Ms Goddard and Mr Fitzpatrick about who has the onus of showing standing. It was, said Ms Goddard, insufficient for Sanyo to impugn the standing of Nuplex and then “do nothing about it”, in that Sanyo has at no stage brought in evidence that might suggest that Nuplex does not have standing.
15. It is clear from the Gaines case, supra, that it is the removal applicant who has the onus of showing that it has standing. I believe that Ms Goddard was stretching certain paragraphs of the Trade Marks Office Manual of Practice and Procedure too far when she suggested otherwise.
16. At the root of this exchange there is the following section, a portion of item 2.1 in Part 48 of the manual:
The Trade Marks Act 1995 is framed on the basis that "an application which is unopposed should be taken as proven without further evidence or action being required by the removal applicant", (p 90 of Recommended Changes to the Australian Trade Marks Legislation). The Registrar therefore has been given no discretion in the case of an unopposed application (section 97) and the standing of the applicant as a person aggrieved will not then be questioned.
If removal is opposed, the onus is on the opponent to rebut the assumption that the application is proven. Accordingly, the Registrar will not initiate any investigation into a claim that the removal applicant has standing as a person aggrieved. Such a claim will still be taken at face value unless the opponent disputes the right of standing and addresses this in its evidence in support. The applicant for removal will then have the opportunity to rebut any challenge to its standing in its evidence in answer.
This practice has been applied in Registrar's decisions in relation to opposition actions to removal under section 92 of the Act. In Re Application by Figgins Holdings Pty Ltd (IP Aust, H R Hardie, 1 July 1998, unreported [TM Application 460449]) Deputy Registrar Hardie pointed out:
the claim to standing is all that is required under the removal provisions of the Trade Marks Act 1995. In contrast to the Trade Marks Act 1955 (Cth), the removal applicant is not required to lodge any evidence in support of the removal application. Once there is an opposition to the application for removal, the onus is on the opponent to rebut an allegation that the trade mark has not been used by the registered owner and to that purpose there is provision for the lodgment of evidence. If the opponent challenges the applicant's standing, the applicant has an opportunity to provide evidence to support its claim in evidence in answer.
Note: In the normal course of events, no account will be taken of an assertion by an opponent that an applicant for removal has no standing, unless the opponent serves and files evidence in support of the opposition in which this issue is addressed. If no evidence in support is filed, reg 9.4(3) will end the proceedings without the applicant having an opportunity to answer the assertion. For this reason unsupported assertion cannot be given weight.
Also, and as Mr Fitzpatrick noted from Structureco Inc v Registrar of Trade Marks [2003] FCA 1290, the Manual has no statutory effect and can be considered and then not followed, where circumstances justify it.
17. Beyond that, I am aware of a number of cases where a removal opponent, having filed no evidence of use, has insisted that the matter of standing be fully investigated. Normal practice in such a case is to give a direction under reg 5.16 allowing evidence to be brought in as to the standing of the removal applicant. Such a course is consistent with the initial Gaines decision3, that of Hill J, of which the case cited above is the appeal. In the initial decision, Hill J noted:
I should say that during the course of the hearing I indicated to counsel for Kraft that if his client was taken by surprise as to the submission that the evidence before me was insufficient to satisfy the burden of proof of showing that his client either used or proposed to use the mark, I would be prepared to entertain an application for adjournment. However, counsel for Kraft confirmed that he was not taken by surprise and was perfectly content with the evidence as it stood.
18. I take this paragraph also as sufficient to dispose of the question of further evidence. Hill J was prepared to allow in evidence of standing very late in the piece. Similarly, normal practice at the Trade Marks Office would see such directions given even where there is no suggestion whatsoever that the trade mark has been used. Therefore, I will grant permission in the present matter. I turn to the much laboured-over further evidence.
Further evidence considered
19. Mr Wojcenski declared, on 6 October 2004, that he was the Business Manager of Fiberglass International, an operating division of Nuplex, which is in turn a subsidiary of a New Zealand company. He declares that the trade mark NUPOL was created out of the combination of the company name with the word “polyester”. He is somewhat cryptic about why the trade mark was created. He declares (parenthetical comment added) that this:
followed the conclusion of a particular licence agreement between Nuplex and a third party that gave rise to a need for NSR (another operating division of Nuplex) to develop its own particular resin and gelcoat product ranges under a separate branding from that used by Nuplex at the time.
20. This was done “with a view to arriving at a trade mark that would be an effective piece of branding for NSR customers, such as those in the industries and regional markets set out in paragraphs 11 to 13 above”. NSR is a supplier of “niche” products to the Australian and New Zealand markets in resin products. It is clear from clause 15 of the Wojcenski declaration that NSR trades in Australia and I take the totality of Mr Wojcenski’s evidence to show that his company desires to use the trade mark NUPOL to service the niche markets of its NSR subsidiary in Australia. Exhibit AW5 to his declaration shows a colour chart of fibreglass gelcoat products available under the trade mark NUPOL.
21. Accordingly, there is sufficient real and settled purpose about the use and intended use by Nuplex of the trade mark NUPOL.
22. Nor am I persuaded by Mr Fitzpatrick’s argument that, since Nuplex has already commenced to use its trade mark, it needs to now show more, if it is to demonstrate that it is “appreciably disadvantaged in a legal or practical sense” (Gaines, supra). Nuplex wishes to register the trade mark that it uses. I am prepared to infer the obvious, which is that Nuplex wants thereby to obtain the additional advantages that come with the registration. Mr Fitzpatrick has read too much into the decision on which he relied, Schutz-Werke Gmbh & Co Kg v Forecast & Trading Pty Ltd 44 IPR 209. In that case, Deputy Registrar Hardie noted, at page 214, with parenthetical material and emphasis added:
To this end, and assuming that it was available, (the removal applicant) could have provided evidence of the commercial interest which led to its filing of No 702875. Again, subject to availability, it could have filed evidence of the use it intended for that mark, and of the adverse consequences it foresaw which would be brought about by the continued registration of Nos 423095 and 490301. It did not do this, but instead relied on its removal application documents, and the fact of its own impeded trade mark application.
23. Clearly, she was drawing a contrast between what the removal applicant had done and what it “could” have done, particularly since there was in the case before Ms Hardie (at page 213) no evidence at all of intention to use, much less actual use. There is nothing in the decision to show that a removal applicant must necessarily, with utter and meticulous detail, specify all the circumstances of its motivations, aspirations, legal advice etc. Just as the disadvantage is to be “in a practical and business sense” (Gaines, supra) so I think should be the demonstration. Here is a case of “I want to register the trade mark that I am now using”. This ought to carry due weight at the Trade Marks Office. It is inappropriate for the Registrar of Trade Marks to ask of such an applicant, “Why?”
24. I am satisfied that Nuplex has standing as a person aggrieved and is thereby entitled to bring the removal application.
Substantive question: use by Sanyo.
25. Before getting too deeply into the details of the evidence, sufficient of which will emerge in due course, there is no dispute between the parties about the use of the trade mark. According to Ms Goddard, the goods on which the mark is used can readily be described as “surfactants”, although Sanyo describes them only as “surface active chemical agents; industrial chemicals; polyether polyols and derivatives thereof and defoamers”.
26. The only question is, where did that use occur? Ms Goddard argues that the evidence shows Sanyo uses the trade mark NEWPOL only in Japan, in relation to goods to be subsequently exported, by another company, from Japan to Australia. There is no evidence that the goods are onsold in Australia under this trade mark, or indeed that the trade mark is necessarily used in relation to their import from Japan for sale in Australia. Instead, she argued that they are “rebadged” as TIGERFAX and then sold by Tiger Chemical Company. It was, argued Ms Goddard, under the trade mark TIGERFAX that these goods first went into trade in Australia.
27. Mr Fitzpatrick, for his part, noted that there was no question that the trade was commercial. 190,000 Kg was a significant trading quantity, he said, not like the small quantities of non-commercial use in WD and HO Wills v Rothmans 1956 1B IPR 511. I agree, this is clearly not a case of personal import for private consumption.
28. Mr Fitzpatrick also noted the clear statement in the declaration of Masaaki Ienaga, the President of Sanyo: “all the said goods sold within Australia have been packaged in iron drum containers which are clearly labelled with the said trade mark”. Photographs of such drums, bearing the trade marks NEWPOL PE-61, NEWPOL PE-62 and NEWPOL PE-64 are in evidence4. Mr Ienaga also declares to the use of the trade mark in brochures distributed to customers, including Tiger Chemical Company in Australia5.
29. Mr Fitzpatrick noted the decision of McGarvie J in Settef SpA v Riv-Oland Marble Co (Vic) Pty Ltd, 10 IPR 402. A key and very relevant finding was not disturbed on appeal. McGarvie J noted comments from Estex Clothing Manufacturers Pty Ltd v Ellis & Goldstein Ltd (1967) 116 CLR 254 and which I reproduce here as they are also of telling relevance.
… when it is said that a trade mark is used to distinguish the goods of one man from another, that abbreviated statement obviously does not refer to the goods of the owner of the mark in the sense of the goods which he owns or possesses. After the goods have been sold by him his mark may still, using the definition of trade mark in the Act, be used in relation to those goods for the purpose of indicating a connection in the course of trade between them and him, the registered proprietor of the mark. The manufacturer who sells goods, marked with his mark, to a warehouseman, wholesaler or retailer does not, in my view, thereupon cease to use the mark in respect of those goods. The mark is his property although the goods are not; and the mark is being used by him so long as the goods are in the course of trade and it is indicative of their origin, that is as his products. Goods remain in the course of trade so long as they are upon a market for sale. Only when they are bought for consumption do they cease to be in the course of trade. The concepts upon which the case turns are economic, commercial, business concepts concerning the marking and marketing of goods, rather than the provisions of the Sale of Goods Act concerning the passing of property.
30. McGarvie J then went on to note, at 416, the facts relied on by the Italian company in the matter before him:
Selling and shipping to a trader in Australia a drum of material marked “Riv-Oland” is clearly a use of the trade mark in Australia. It makes no difference if the drum is purchased to be used in making samples. In the Thunderbird case, supra, Jacobs J considered an argument that the sale and delivery to an Australian trader of a boat to be used for the making of moulds rather than for resale or use as a boat, was insufficient. His response was that the clearest case of use of a trade mark for the purpose of indicating a connection in the course of trade between the goods and the person who uses the mark is the use of the mark in Australia on an article sold by the user. He added at 601: “The nature of the sale or the purpose of the purchaser in making the purchase can not gainsay the use of the mark in relation to the goods sold for the obvious purpose of indicating the necessary connection”.
31. I note that, as Ms Goddard pointed out, the goods were sold, in Japan, to Shinwa Trading Co, (Shinwa) which then sold and shipped them to Tiger Chemicals in Australia. She argued that there is room for real doubt here about how Shinwa dealt with these goods. Keiji Kusaka of Shinwa has confirmed that the goods were sold in containers labelled as per the evidence given by Mr Ienaga. Mr Ienaga has appended to his declaration “invoices for the sale and shipping” of relevant goods.
32. Counsel took me to the text of these. The terms are, so far as I can tell from the translation, significantly different to the invoices subsequently issued by Shinwa. The Sanyo invoices are in Japanese and addressed to the Tokyo branch of Shinwa. They have a heading “Description of shipped goods”, which I take to be analogous to the shipping mark item in the corresponding Shinwa invoices. There is a reference to NEWPOL PE-62 etc. This is to be contrasted with the corresponding Shinwa invoices, which show Shinwa invoicing Tiger Chemical Co. Under the heading “Description” there are items of the following form:
TIGERFAX PE62
“Sanyo Chemical” make,
NEWPOL PE62
In iron drums of 210 kg net.33. This, as Ms Goddard argued, suggests that the product, although of “Sanyo make” and being in fact the NEWPOL PE62 product, was branded TIGERFAX PE62. The invoices are quite clear on one point: The shipping mark is said to be
TIGERFAX PE62
210 KG net
O/N 2476 (etc, as the case may be)
No 1-60 (etc)
Made in Japan.34. Mr Ienaga has been quite categorical, as I said, about the packaging of the goods sold in Australia. I accept that Mr Ienaga has told the literal truth, and Ms Goddard at no stage suggested otherwise. He declares that the goods sold in Australia “have been packaged” in drums labelled NEWPOL. Presumably, he was not in a position to attest to the labels on those same goods when they left Shinwa. Equally, Mr Kusaka has attested to the accuracy of Mr Ienaga’s comments and the validity of the invoices from Sanyo to Shinwa and from Shinwa to Tiger Chemicals. Moreover, Mr Kusaka has also said plainly that:
The containers for the said goods which were sold and shipped by my Company to Tiger Chemical Company during the period 10 May 2000 to 10 May 2003 were clearly labelled with the trade mark NEWPOL. The labels also clearly indicated Sanyo Chemical Industries Ltd as the manufacturer of the said goods.
He then goes on to refer to sample labels attached to Mr Ienaga’s declaration.
35. Ms Goddard suggested that Shinwa was using the word NEWPOL as an indication of contents, not as a trade mark. This, as she pointed out, would be quite consistent with the fact that PE 61, PE 62 etc were being used to indicate the type of product sold (in Japan) under the trade mark NEWPOL. It was logical, she therefore suggested, that the use, under the heading “Description” in the Shinwa invoices, entirely negated any trade mark function in the word NEWPOL when, on the face of it, the “shipping mark” was TIGERFAX and not NEWPOL.
36. Mr Fitzpatrick was very critical of this. How, he argued, could the use of NEWPOL in relation to invoices for the commercial importation of goods not be trade mark use? Mr Fitzpatrick also put to me a more complicated analysis that involved the customs seizure provisions in Part 13 of the Act but I am satisfied that the matter should be decided from first principles.
37. It seems to me that Shinwa has invoiced Tiger Chemicals for NEWPOL product, albeit either already re-badged or to be re-badged (subsequently, in Australia and by Tiger Chemicals) as TIGERFAX. Even so, the use of the trade mark NEWPOL in the Shinwa invoices in the terms quoted is clearly to indicate the nature of the goods by reference to their trade source. I exclude any possible “comparative” functions. The use of the words “Sanyo Chemical” make, NEWPOL PE62 is clearly not for purpose of comparison. To argue that this is a descriptive and non-trade mark use, as Ms Goddard does, is to assume that the word NEWPOL is part of the lexicon of ordinary traders. One might as well postulate that the trade mark COCA COLA might be used similarly, yet in a non-trade mark sense, in an invoice for cola-based soft drinks.
Conclusion
38. My decision is that the trade mark should be removed for those goods on which it has not been used. As to its consequent terms, there is some gap between what the two parties appear to accept as an appropriate statement of the goods. I see no justification for retention of the trade mark for “industrial chemicals”, which is clearly an ambit claim. In the lack of any detailed submissions from either party my decision is that the trade mark should be removed for all goods other than “surfactants”. This is both the heading under which Sanyo’s trade mark is listed in various trade directories that are in the evidence, and the descriptive term used in Sanyo’s brochures.
39. Unless the registrar has been served with a copy of a notice of appeal prior to the date on which my decision is implemented, I direct that removal proceed after one month from the date of this decision. In the event of an appeal, implementation must await the decision or discontinuance of the appeal.
40. I direct that Sanyo pay the costs of Nuplex.
Terry Williams
Hearing Officer
Trade Marks Hearings
31 January 20051 This is the terminology of the regulations under the earlier 1955 Act, which drew a now-irrelevant distinction between leave and special leave. All that is required under the current regulations is my “permission”.
2 Mia McEwan, whose declaration supports the request for my permission to bring in further evidence,
3 (1995) 31 IPR 439
4 I put no weight on the product identifiers here, PE 62 etc. The evidence shows that such identifiers are commonly used by chemical wholesalers and they do not seem to detract from the trade marks in question, with which they are used.
5 As Ms Goddard noted, these brochures are undated and Mr Ienaga does not attest to the date of circulation.
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