SingTel Optus Pty Limited v Optum, Inc

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS
Re:Opposition by SingTel Optus Pty Ltd to registration of Australian trade mark applications 1438623 – OPTUM – and 1440038 – OPTUM Logo – in classes 35, 36, 44 and 45 in the name of Optum, Inc.

Delegate:

Hearing Officer: Debrett Lyons

Representation:

Opponent: Justine Beaumont of Counsel, instructed by Minter Ellison

Applicant: David Larish of Counsel, instructed by Corrs Chambers Westgarth

Decision:

2016 ATMO 11

s 52 opposition: Ground under ss 42(b), 44, 58 and 60 pressed – none established - opposition unsuccessful.

Background

In this matter Optum Inc. (“the Applicant”) has applied under the Trade Marks Act 1995 (‘the Act’) to register the trade marks which appears below:
Application No: 1438623
Priority Date:  21 July 2011
Services:  as shown in Appendix 1
Trade Mark:  OPTUM
(“the Word Mark”)
Application No: 1440038
Priority Date:  15 February 2011[1]
Services:  as shown in Appendix 1
Trade Mark:
(“the Composite Mark”)
(together, “the Trade Marks”)
[1] Application lodged on 29 July 2011 but by reason of a Convention claim from USA 85/243,166.
The applications were examined as mandated by section 31 of the Act and subsequently advertised as accepted for possible registration in the Australian Official Journal of Trade Marks on 22 November 2012 (Word Mark) and 6 December 2012 (Composite Mark).
By Notices of Opposition filed on 22 February 2013 (Word Mark) and 4 March 2013 (Composite Mark), SingTel Optus Pty Ltd (“the Opponent”) opposed the registration of the Trade Marks.
As a delegate of the Registrar of Trade Marks I heard this matter in Sydney on 17 June 2015. Justine Beaumont of Counsel, instructed by Minter Ellison, represented the Opponent. David Larish of Counsel, instructed by Corrs Chambers Westgarth, represented the Applicant.
Grounds of Opposition
The Notices list a number of grounds corresponding to various provisions of the Act but at the hearing and in its written submissions the Opponent pursued only those grounds based on sections 42(b), 44(2), 58 (in relation to application 1438623 only) and 60 of the Act. It did not press the other grounds set out in the Notices and I treat those grounds as having been abandoned.[2]
[2] Those grounds, and the others available under the Act, may be pursued by the Opponent should this decision be appealed to the courts.
Onus, Standard of Proof and Relevant Date
The Opponent bears the onus of establishing one or more grounds of opposition. I confirm I am proceeding on the basis that the relevant standard of proof required of the Opponent is the ordinary civil standard based on the balance of probabilities.
The relevant date at which the rights of the parties are to be determined is 21 July 2011 in the case of the Word Mark and 29 July 2011 for the Composite Mark.
Evidence
In support of its opposition, the Opponent relies on a declaration of Eve Karakasidis declared on 21 February 2014 (Karakasidis). There is no evidence from the Applicant.
Outline of the argument
The Opponent was incorporated in 1991. It owns a number of registered trade marks in Australia comprising or including the invented word, OPTUS. It regards these trade marks as a “family” of marks. The Opponent uses these trade marks primarily in relation to its telecommunications products and services but has made registrations more broadly in classes 9, 16, 35, 38, 41 and 42. It submits that by reason of the use of the word OPTUS since 1991, the word has become uniquely associated in Australia with the Opponent and the goods and services that emanate from it.
The Applicant provided no declaratory evidence of these matters but at the hearing Mr Larish claimed that the Applicant operates in the healthcare field and provides business management, insurance claim administration and patient healthcare support services. It was said that its applications for the Trade Marks show a range of goods and services relating to healthcare systems.
The Opponent says that the Applicant is not the owner of the Word Mark under section 58 of the Act (there is no objection to the Composite Mark under this section) because its trade mark, OPTUS, is substantially identical to OPTUM and it used OPTUS first for the same kind of thing for which the Applicant seeks registration.
Next, the Opponent says that the Trade Marks “are substantially identical with, or deceptively similar to, each of the marks the subject of the Opponent’s registrations set out in Annexure [2] to these submissions and in particular, registration nos. 558811 and 578775” under section 44 of the Act.
Annexure 2 is a long list of trade marks and I have included it at the end of my decision for reference. Registrations 558811 and 578775 are for the word OPTUS and it is said by the Opponent that there would be public confusion or deception because of the similarity of the Trade Marks to the Opponent’s registrations and the similarity of the services for which the Applicant seeks registration.
The Applicant rejects those claims.
Finally, under sections 42(b) and 60 of the Act, the Opponent says that because of the widespread reputation of the OPTUS trade mark any use of the Trade Marks would amount to conduct which is likely to mislead or deceive and therefore contrary to law, or would be likely to deceive or cause confusion among consumers as to the source of the services.
Discussion
Section 58
Section 58 provides that:
The registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark.
When comparing trade marks for the purposes of section 58, the establishment of nothing less than a substantial identity will suffice in order to establish the ground: in Carnival Cruise Lines Inc v Sitmar Cruises Limited [1994] FCA 936; (1994) AIPC 91-049; (1994) 120 ALR 495, Gummow J said:
When the decision is understood in this way, it does not supply any general authority for the proposition that in the case of disputed claims to proprietorship under the present statute anything less than substantial identity between the two marks will suffice. The phrase "substantially identical" as it appears in s. 62 (which is concerned with infringement) was discussed by Windeyer J in The Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited [1961] HCA 75; (1963) 109 CLR 407 at 414. It requires a total impression of similarity to emerge from a comparison between the two marks. In a real sense a claim to proprietorship of the one extends to the other. But to go beyond this is, in my view, not possible.
The Opponent contends that there is a total impression of resemblance between the Word mark and the Opponent's OPTUS word mark. I cannot agree. On a side-by-side comparison, there are notable points of separation, about which I have more to say shortly in connection with the claim that the marks are also deceptively similar.[3]
[3] I note that the following trade marks have been found not to be substantially identical: "Otrivin" Trade Mark [1967] RPC 613, (OTRIVIN and OTRIVINE); Lonza Ltd v Kantfield Pty Ltd (T/A Martogg & Co) (1995) 33 IPR 396 (FORTEX and FOREX).
Applying the accepted test above, I do not find that the trade marks in question are substantially identical and accordingly I find that the Opponent has not established a ground of opposition under section 58 of the Act.
Section 44
Section 44 of the Act relevantly provides:
44Identical etc. trade marks
(2)Subject to subsections (3) and (4), an application for the registration of a trade mark (applicant’s trade mark) in respect of services (applicant’s services) must be rejected if:
(a)the applicant’s trade mark is substantially identical with, or deceptively similar to:
(i)a trade mark registered by another person in respect of similar services or closely related goods; or
(ii)a trade mark whose registration in respect of similar services or closely related goods is being sought by another person; and
(b)the priority date for the registration of the applicant’s trade mark in respect of the applicant’s services is not earlier than the priority date for the registration of the other trade mark in respect of the similar services or closely related goods.
The registrations upon which the Opponent relies have earlier priority dates than those of the Trade Marks. Putting to one side comparison of the services, I will first consider the similarity of the trade marks. I have already decided that they are not substantially identical and so it remains for me to decide whether they are deceptively similar.
Deceptive similarity is defined by section 10 of the Act which provides:
10Definition of deceptively similar
For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.
Concerning deceptive similarity, Windeyer J in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1963] HCA 66; (1963) 109 CLR 407 at 414 said:
On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's television exhibitions. To quote Lord Radcliffe again: "The likelihood of confusion or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him . . . . It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole": de Cordova v. Vick Chemical Co (1951) 68 RPC, at p 106 . And in Australian Woollen Mills Ltd v. F.S. Walton & Co. Ltd. [1937] HCA 51; (1937) 58 CLR 641 Dixon and McTiernan JJ. said: "In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same"
The assessment of the likelihood of deception and confusion is informed by the factors outlined by French J in Registrar of Trade Marks v Woolworths [1999] FCAFC 1020; [1999] FCA 1020; (1999) 93 FCR 365; [1999] AIPC 91-499; (1999) 45 IPR 411 (‘Woolworths’) at [49]:
Deceptive similarity is to be assessed according to the tests set out in Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 at paragraph 13 per Windeyer J:
In Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 594-5, which concerned the 1905 Act, Kitto J set out a number of propositions which have frequently been quoted and applied to the 1955 Act. The essential elements of those propositions continue to apply to the issue of deceptive similarity under the 1995 Act. Applied also to service marks and absent the imposition of an onus upon the applicant they may be restated as follows:
(i)              To show that a trade mark is deceptively similar to another it is necessary to show a real tangible danger of deception or confusion occurring. A mere possibility is not sufficient.
(ii)             A trade mark is likely to cause confusion if the result of its use will be that a number of persons are caused to wonder whether it might not be the case that the two products or closely related products and services come from the same source. It is enough if the ordinary person entertains a reasonable doubt.
It may be interpolated that this is another way of expressing the proposition that the trade mark is likely to cause confusion if there is a real likelihood that some people will wonder or be left in doubt about whether the two sets of products or the products and services in question come from the same source.
(iii)            In considering whether there is a likelihood of deception or confusion all surrounding circumstances have to be taken into consideration. These include the circumstances in which the marks will be used, the circumstances in which the goods or services will be bought and sold and the character of the probable acquirers of the goods and services.
(iv)           The rights of the parties are to be determined as at the date of the application.
(v)            The question of deceptive similarity must be considered in respect of all goods or services coming within the specification in the application and in respect of which registration is desired, not only in respect of those goods or services on which it is proposed to immediately use the mark. The question is not limited to whether a particular use will give rise to deception or confusion. It must be based upon what the applicant can do if registration is obtained.
In respect of the last proposition, Mason J observed in Berlei Hestia Industries Ltd v The Bali Company Inc [1973] HCA 43; (1973) 129 CLR 353 at 362:
"...the question whether there is a likelihood of confusion is to be answered, not by reference to the manner in which the respondent has used its mark in the past, but by reference to the use to which it can properly put the mark. The issue is whether that use would give rise to a real danger of confusion."
The Opponent’s submissions are that:
the Opposed Marks have a “striking aural similarity”[4] with each of the OPTUS marks. It is likely that people would accentuate the beginning of the respective words. The first syllables are identical and the second syllables are almost identical in that the sound is the common 'u' with the 's' / 'm' ending being soft and aurally indistinguishable.
In relation to the OPTUM composite mark, the device is very much subsidiary to the word OPTUM and is unlikely to make 'any lasting impression on the mind of most consumers': cf Vivo v Tivo (2012) 99 IPR 1 at [154] (per Nicholas J, Dowsett J concurring). As in the case of Lift Shop v Easy Living Home Elevators (2014) 106 IPR 419, [2014] FCAFC 75, the mark in question is not a complex composite mark and the word element is very much the significant attribute of the mark.[5]
Further, the OPTUM composite mark is deceptively similar to the Opponent’s composite mark the subject of registration no. 663710. Apart from the substantial identity of the essential and distinguishing feature word in both marks - OPTUS/ OPTUM, the devices both create the impression of movement and have a similar relationship to the distinguishing word in the mark.
[4] See Vivo v Tivo at [44], [77] –[82] (per Keane CJ)
[5] Lift Shop v Easy Living Home Elevators Pty Ltd (2014) 106 IPR 419, [2014] FCAFC 75 at [59]-[64]
I cannot agree with those submissions. During the hearing and in reflective moments since, it has not ever seemed to me that OPTUM and OPTUS were deceptively similar, even when I made an unexamined assumption that the respective services were similar.
Whilst the Opponent’s OPTUS word mark and the Word Mark have a degree of visual resemblance, that similarity is in my view more than counterbalanced by the aural and other differences between the trade marks. They share a common first syllable, but that part of the marks is almost “swallowed” during pronunciation and it is the second syllable which defines that overall sound of the trade marks and which is aurally dominant.
An elocution teacher might pronounce the second syllables as “oos” and “oom”, but in my assessment the relevant Australian audience would by more likely to pronounce the Opponent’s trade mark as “optis” and the Word Mark as “opt oom”. That assessment is based in part on my own observation of the way in which the Opponent enunciates its own trade mark in its advertising.[6]
[6] I note here also the Applicant’s submission which was that “in both two syllable words, the aural emphasis of the marks under comparison is on the second syllable, which, given the ‘US’ and ‘UM’ sounds, is aurally distinct (cf OS [18]). This is because ‘S’ and ‘M’ are very different consonantal sounds; the mechanics of speech are such that the pronunciation of ‘S’ (a sibilant) requires the speaker to direct a stream of air towards their teeth with their lips open, whereas the pronunciation of ‘M’ (a bilabial nasal) requires the speaker’s lips to come together.”
In that way the overall aural character of the compared marks is quite different. Moreover, although both trade marks are invented words without dictionary meanings, the pronunciation I find that the Australian public would give to the Word Mark makes it at least suggestive of other known words such as “optimum” or “optimal” and so shifts the compared marks apart a further degree since the Opponent’s mark appears to me to be completely without nuance.
Nor is this a case where an opponent’s trade mark is wholly subsumed within the applied-for mark, is it was in Aldi Stores v Kaldi Coffee Pty Ltd [2008] ATMO 29, a case where Aldi stores brought an opposition under section 44 (and other grounds) asserting, unsuccessfully, that the mark shown below was deceptively similar to their registered ALDI trade mark:
It follows, a fortiori, that I do not find the Composite Mark deceptively similar to the OPTUS word mark.
There remains the Opponent’s suggestion that the Composite Mark is deceptively similar to the composite mark the subject of registration 663710,[7] shown below, since in its words, “the devices both create the impression of movement and have a similar relationship to the distinguishing word in the mark.”
[7] While that registration was valid at the time of hearing, the registration expired on 29 June 2015. On 21 January 2016, this trade mark was advertised as removed from the register for non-payment of renewal fee.
Registration 663710 is for a series of two marks. They differ in the positioning of the device component relative to the word elements, which comprise the word, OPTUS, the word, World, and the phrase “Communicate with us”.
I have found that OPTUM and OPTUS are not deceptively similar. The compared device elements bear no resemblance at all in my opinion. The suggestion that they both create the impression of movement is fanciful. The submission that they somehow “have a similar relationship to the distinguishing word in the mark” is incomprehensible since I do not know which mark of the series of two is used as the reference point; in any event I do not accept the submission as it might apply to either mark of the series. Moreover, the distinction created by the added word “World” and the phrase “Communicate with us” serves only to convince me thoroughly that the compared marks are not deceptively similar.
The Applicant’s submission is that its business[8] is quite removed from the core business of the Opponent[9] but if I ignore that (as I must) and accept that there is some degree of overlap between the applied-for services and those for which the Opponent’s word mark is protected, I am not satisfied that there is a reasonable likelihood of deception or confusion occurring.
[8] As stated already, there is no declaratory evidence from the Applicant and so its claim that the services are provided solely to the healthcare industry is premised only on a reading of the class specifications.
[9] The Karakasidis declaration states that all of the Opponent’s services are related in some way to the provision of telecommunication.

The section 44 ground of opposition has not been established.
Section 60
Section 60 of the Act provides:
60Trade mark similar to trade mark that has acquired a reputation in Australia
The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:
(a)another trade mark had, before the priority date for the registration of the first‑mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and
(b)because of the reputation of that other trade mark, the use of the first‑mentioned trade mark would be likely to deceive or cause confusion.
Under section 60 it is not necessary for the respective trade marks to be deceptively similar although such a finding can be relevant in determining the likelihood of deception or confusion.
I have found that that respective trade marks are not deceptively similar for the purposes of section 44 and the question now is whether their (lesser) degree of similarity, in combination with other factors, still makes it likely that use of the Trade Marks would cause deception or confusion.
Those other factors include the strength of the Opponent’s reputation and the nexus between that reputation and the applied-for services.
Putting to one side the breadth of its reputation, there can be no doubt on the evidence that the Opponent’s trade mark is very well known in Australia. The Applicant accepts that.
Nonetheless, it is the Opponent’s submission that reputation can be “a double-edged sword” and I was referred to the decision of this Office in Nikon Corporation v Lovric [2014] ATMO 48 at [37], where Hearing Officer Worth concluded:
It is the very strength of the reputation of NIKON in respect of cameras and associated lenses that I find weighs against the likelihood of confusion with IKON in respect of the various specified beverages.
The Applicant submits otherwise, but I am prepared to proceed in this case on the assumption that the Opponent’s reputation extends to at least some part of the applied-for services. But I only make that assumption taking account of the reasoning in the decision of Jessup J in Delfi Chocolate Manufacturing S.A. v Mars Australia Pty Ltd [2015] FCA 1065, not handed down at the time of the hearing.
In that case the confectioner and owner of the well-known MALTESERS trade mark appealed to the Federal Court for refusal of registration of a trade mark, MALTITOS, the subject of application No. 1546597, in Class 30 for “Confectionery; biscuits; chocolate; cocoa; products made from or including chocolate and/or cocoa”.
For present purposes it can be understood that the goods of the parties in that case were identical. Jessup J wrote:
I would find that the respondent’s mark is strongly embedded in the consciousness of many of those of average intelligence whose circumstances provide the template for the notional consumer of confectionery with whom I must be concerned. It is probably an overstatement to say that everyone has heard of Maltesers, but it is established on the evidence that a great many people have. As noted above, the applicant conceded that the respondent’s mark had a reputation in Australia as required by s 60(a), but I would go further and find that it has a very widespread, solid, reputation in the area of packaged confectionery.
I do not consider, however, that that circumstance would make it any more likely that the notional consumer of confectionery would have cause to wonder whether products displayed and sold under the applicant’s mark were from a common source with those displayed and sold under the respondent’s mark. Indeed, with a stronger awareness of the respondent’s mark, I consider that such a consumer would be immediately struck by the differences between the two marks, as discussed above. He or she may observe the limited similarities between the marks and, because the subject of the presumptive interest would be confectionery, may assume that the products were of the same nature as those sold under the respondent’s mark, but, giving the matter a moment’s reflection, would readily conclude that those products were not Maltesers. As I say, the strong reputation of the respondent’s mark would, if anything, make that conclusion a more likely one.
That reasoning applies here, a fortiori, since in my estimation the reputation of the Opponent in the OPTUS trade mark outstrips that of the MALTESERS mark, and further, if confusion is unlikely in the case of the purchase of a confectionary item, there is less likely to be confusion when it comes to considerably more expensive business services.
In my assessment, taking account of all of the evidence, the likelihood of confusion between OPTUS and the Trade Marks is negligible. Any argument that confusion might arise because of a claim that the Opponent is the owner of a large stable of OPTUS-formative trade marks also fails since there is not one of those registrations which shows variation of the word OPTUS itself.
The section 60 ground of opposition has not been established.
Section 42
The remaining ground, based on section 42(b) of the Act, is likewise bound for failure. It provides:
42Trade mark scandalous or its use contrary to law
An application for the registration of a trade mark must be rejected if:
(a)…
(b)its use would be contrary to law.
The Opponent argues that use of the Trade Marks would constitute both passing off and also misleading and deceptive conduct contrary to the Australian Consumer Law (‘the ACL’), which is contained in Schedule 2 to the Competition and Consumer Act 2010, relying upon subsection 18(1) which corresponds to section 52 of the now repealed Trade Practices Act 1974 (‘the TPA’). Schedule 2 relevantly provides:
Section 18: Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
In Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506; [1990] ATPR 40-994; (1989) 16 IPR 431 Hill J said of section 52 of the TPA at [41]:
While there remain many areas of difficulty in the application of s.52 of the Act to the facts of a decided case there have been established a number of propositions, relevant to the determination of the present case, which are no longer in dispute:
1. For conduct to be misleading or deceptive the conduct must convey in all the circumstances of the case a misrepresentation: Taco Bell at 202. In the present case the misrepresentation on the part of the respondents is said to be that the financial product advertised and marketed by each of them is the product of the applicant or that there is some business relationship between the applicant and each of the respondents or that the applicant has endorsed the respective product of the respondents.
2. There will however be no contravention of s.52(1) of the Act unless error or misconception results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible: Puxu per Gibbs CJ at p 6 and per Mason J at p 15, Global Sportsman Pty Ltd v. Mirror Newspapers Ltd [1984] FCA 180; (1984) 55 ALR 25, at p 34.
3. Conduct will be likely to mislead or deceive if there is a "real or not remote chance or possibility" of misleading or deception regardless of whether it is less or more than 50%: Global Sportsman at p 34. The question of whether conduct is misleading or deceptive or likely to mislead or deceive is an objective question which the Court must determine for itself. Hence evidence that persons in the relevant class have been misled will, although admissible, not be determinative. In some cases however such evidence will be very persuasive: Puxu per Gibbs CJ at pp 198-9.
4. Conduct of a corporation causing mere confusion or uncertainty in the minds of the public in the sense that they may be caused to wonder whether two products may have come from the same source is not necessarily coextensive with misleading or deceptive conduct: Puxu at p 100; Bridge Stock Brokers v. Bridges (1984) 57 ALR 401 at p 413 per Lockhart J. Since actual deception need not be shown the Court must consider whether a reasonably significant number of potential purchasers would be likely to be misled or deceived: Weitmann v. Katies Ltd (1977) 29 FLR 336, 343. The test in passing off cases is usually expressed as being whether a "substantial number of persons likely to become purchasers ... are liable to be deceived by the defendant's use of the name. On the other hand it is not necessary to show that all, or substantially all, persons in the market associate the name with the plaintiff's goods, if this can be shown of a substantial proportion of persons who are probably purchasers of the goods of the kind in question." (per Wilberforce J, as he then was, in Norman Kark Publications Ltd v. Odhams Press Ltd (1962) RPC 163 at 168 and see Saville Perfumery v. June Perfect Ltd (1941) 58 RPC 147 at 175-6, 10th Cantanae Pty Ltd v. Shoshana Pty Ltd (1987) 79 ALR 299 at 315 per Gummow J).
5. In a case such as the present the applicant must establish that it has acquired the relevant reputation in the name, that is to say that the name had become distinctive of the applicant's business in a particular country or geographical area: Sheraton Corporation of America v. Sheraton Motels Ltd (1964) RPC 202; BM Auto Sales Pty Ltd v. Budget Rent A Car System Pty Ltd (1976) 12 ALR 363. However at least in some circumstances very slight activities may be found to be sufficient to establish that a name has become distinctive of a person's business in a particular country: Miki Shoko Co Ltd v. Merv Brown Pty Ltd (1988) ATPR 40-858.
6. Section 52 is not confined to conduct which is intended to mislead or deceive: Puxu per Gibbs CJ at p 197 and a corporation which acts honestly and reasonably may none the less engage in conduct that is likely to mislead or deceive: Yorke v. Lucas [1985] HCA 65; (1985) 61 ALR 307 at p 309.
For this ground to be established, it must be shown that the use of the Trade Marks would, not could, be contrary to law.[10] It is well settled that an opponent which has been unable to establish the requisite level of confusion for the purposes of section 60 cannot generally invoke the tort of passing off and the ACL for the purposes of section 42(b).
[10] See eg Advantage Rent-A-Car Inc v Advantage Car Rental Pty Ltd (2001) 52 IPR 24 at [28] per Madgwick J.
I find that there is no likelihood of confusion so as to establish a breach of the ACL by reason of the Applicant’s use of the Trade Marks in respect of the services for which registration is sought, nor would there be a misrepresentation for the purposes of passing off.
The ground of opposition under section 42(b) has not been established.
Decision
Section 55(1) of the Act relevantly provides that, unless the proceedings are discontinued or dismissed:
…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.
I have found the opposition to be unsuccessful on all grounds pressed.
Costs
Both parties requested an award of costs in their favour. As the successful party, the Applicant is so entitled and I accordingly award costs against the Opponent as per Schedule 8 of the Trade Marks Regulations 1995.
Debrett Lyons
Hearing Officer
Trade Marks Hearings
5 February 2016
ANNEXURE 1
Optum Word Mark: Services
Class: 35 Managed care services, namely, utilization review and pre-certification services; medical cost management; organizing and administering networks of health care providers; providing medical business directory information services regarding health care professionals and health care provider organizations; promoting the medical services of others by dissemination of prior effectiveness record information indicating that the providers meet certain criteria; development and administration of group purchasing programs as a value- added employee benefit; medical and health-care cost/price analysis; administration of a discount program for enabling participants to obtain health care services from a network of health care providers; cost management services for health benefit plans of others; business management consultation, namely, development of health care delivery systems for independent practice associations, medical clinics and other forms of physician organizations; business consultation to the health care industry in the fields of the development and implementation of policies, practices, and quality assurance; promoting the sale of credit card and debit card accounts through the administration of a discount program for enabling participants to obtain discounts on goods and services through use of discount membership cards and purchasing with a credit card or debit card; promoting the goods and services of others through the distribution of discount membership cards; accounts receivable services; administration and reconciliation of accounts on behalf of others; administration of business payroll for others; health care and medical practice administration services, namely, providing back office services for physician practices, medical billing services; health care and medical business services, namely, development of systems for health care delivery between businesses; managed health care services, namely, electronic processing of health care information; providing information in the field of business administration of health care and medical practices; consultation in the field of management, operation, and development of business systems for the delivery of health care; healthcare management service organization (MSO) services, namely, providing practice organization, management and administrative support services to individual physicians or small group practices; administration of pharmacy reimbursement programs; cost management services for pharmacy benefit and prescription drug benefit plans of others; business management of pharmacy benefit plans and prescription drug benefit plans of others; mail order services featuring prescription medications, specialty pharmaceuticals, over-the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; on-line retail store services featuring prescription medications, specialty pharmaceuticals, over- the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; retail drugstore and retail pharmacy services rendered by telephone featuring prescription medications, specialty pharmaceuticals, over-the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; physician practice and medical practice management for others; computerized database management in the fields of medical records and medical billing; on-line business and financial records management in the fields of medical records and medical billing; research in the nature of providing health economics and outcomes research and market informatics to the biotech and pharmaceutical industry; reimbursement consulting to the biotech and pharmaceutical industry in the nature of analyzing current health care payment program reimbursement policy and evaluating product cost-effectiveness for the purposes of product development, product approval and market acceptance; business consultation services for the healthcare industry; outsourcing services in the field of healthcare; computerized health care provider business data and information management in the fields of health care and insurance; providing on-line directory information service featuring electronic healthcare trading partners, namely, healthcare providers and claims processors and payers, including their electronic data interchange capabilities and requirements for healthcare transactions; providing an on-line computer database containing information concerning physician credentials for health care providers in the health care and insurance industries; providing temporary employment staffing for technical, scientific, and administrative positions for medical, pharmaceutical, and biotechnology research; providing data management and biostatistics services for the pharmaceutical and biotechnology industries; business consulting and outsourcing in the field of clinical and health economic research services for pharmaceutical, biotech, medical device companies, and other health care companies; management services of a business nature for clinical trials in the field of investigational drugs, namely, arranging for sites to perform clinical trials, arranging for the import, packaging, shipping, labeling, and distribution of drugs and other investigational supplies to and from the clinical trial sites, arranging for the central collection of laboratory specimens from clinical trial sites, regulatory submission management for investigational new drugs, and preparing statistical reports resulting from clinical trials; business research and consulting services in the nature of analysis of health care data and in the field of health care data analysis; computer generated information services, namely, providing customized on-line, non-downloadable computer databases featuring business data and information regarding drug prescriptions; conducting business research and surveys; conducting surveys in the field of health and wellness; organizing and administering networks of retail pharmacies; administration of pharmacy reimbursement programs and services; providing referral services to the elderly in the fields of health care and well-being, wellness and nutrition, medical equipment and medical supplies, transportation, housing and home repair, financial counselling and financial services, insurance services, community services and resources, home security systems and personal emergency response systems, and legal services
Class: 36 Insurance claims administration; insurance claims processing; administration of pre-paid health care plans in the fields of chiropractic, physical medicine, and complementary and alternative medicines; insurance services, namely, underwriting insurance and reinsurance for pre-paid health care and health, life, dental, vision, and disability insurance; insurance underwriting in the field of excess risk, medical, life, and disability insurance, and insurance administration related thereto including managed care services; providing managed care optical benefits plans for others; insurance and financial services, namely, verifying insurance eligibility, processing and facilitating insurance copayment transactions, administration of employee benefits plans, banking services, credit card services, debit card services, issuing stored value cards, administering deposit and medical spending accounts, consumer lending services, electronic funds transfer, administration of defined contribution plans, administration of health care plans, health transaction clearinghouse services, management of revenue and expense transactions for providers of health and medical products and services; on-line services for health care practitioners, namely, providing transaction services to health care practitioners via an on-line computer network, namely, insurance eligibility and verification, referral authorizations, billing and payment in the insurance field; insurance brokerage; administration, financial management and maintenance of health savings accounts, medical savings accounts, health reimbursement arrangements and flexible spending accounts; offering consumer-driven health care plans, namely, underwriting, administration, financing, and maintenance of consumer-driven health care plans and defined contribution health care plans; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding daily living problems in the fields of retirement, life-event financial planning, and credit card and other debt; health savings account services, namely, providing banking services and savings account administration for consumer-driven health care plans and defined contribution health care plans; medical insurance services, namely, providing a qualified medical insurance plan with a tax advantaged medical savings account; business banking services; credit and debit card transaction processing services; investment consultation, brokerage and management services; financial investment services in the fields of securities, mutual funds, certificates of deposit, and portfolio management; accounts payable services; mortgage banking services, mortgage lending services, mortgage brokerage services; consumer loans and checking and savings account services; commercial lending services; issuing letters of credit; foreign exchange services, namely, foreign exchange transactions; foreign exchange information services and providing for the exchange of foreign currency; financial consultation for educational financial assistance and student loan services; treasury management services; trust management services; cash management services; on-line banking services; on-line business banking services; bill payment services; electronic processing and transmission of bill payment data; providing information regarding banking, credit, money management, investing, investments and financial matters; counselling in the field of banking and financial services; provision of consolidated reports of banking and financial activity; financial services, namely, mortgage loan services, home equity financing and revolving lines of credit; trustee services; administration of prescription drug benefit programs; administration of pharmacy benefit programs; prescription drug and pharmacy benefit claims processing services; pharmacy benefit management services; organizing and administering preferred provider plans for a network of pharmacy providers; providing on-line information in the field of pharmacy benefits; facilitating health related transactions via computer and communications networks, namely, electronic processing of health insurance claims and payment data; electronic bill payment services in the health care and insurance industries; claim recovery services for medical insurance payors; insurance consultation services for the healthcare industry; administration of health care service plans; insurance services, namely, claims administration of health care service plans; insurance underwriting and administration in the field of health care; administration of health care service plans and health care benefit plans for medical care services provided to elderly and chronically ill populations; providing business ratings on the financial condition of healthcare organisations
Class: 44 Hospital admission counselling services; patient health care support services in the nature of health care decision support counselling and health care planning for individuals at risk of needing intensive treatment; health care services, namely, disease management programs; medical case management and disease management services, namely, disease-specific information and medical care resources to assist patients in managing their own health care and to reinforce the treatment plan; providing health information; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding physical and mental health, and substance abuse; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information in the fields of ageing, chronic condition support, medications and drug interactions, special needs assistance, and pet care; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding daily living problems in the fields of parenting, childcare, and eldercare as they related to health and well being; providing information regarding the outcomes, structure, processes, and effectiveness of health care professionals and health care provider organizations to health plan members for use in evaluating and selecting health care professionals and health care provider organizations; nurse information services, namely, nurse triage and nurse call centers providing information regarding specific health-related concerns and general health issues; health care consulting and health care counselling services in the field of preventative health care and total health management, namely, establishing health risk assessment profiles to identify personal and group health risks, personal and group health risk counselling, health care counselling in the field of health risk intervention, health promotion, health risk and behaviour modification, and preventative medical assessment and screening; health care services, namely, preventative medical assessment and screening; consulting services in the field of medical triage protocols, policies, and practices; providing health care information on-line via computer and communications networks; providing information in the field of health and wellness; providing a web site featuring information in the field of health and wellness; managed health care services; providing in home health care and evaluations; providing health care information; health care in the nature of health maintenance organizations (HMOS), preferred provider organizations (PPOS), and fee for service medical services; conducting disease management programs for elderly and chronically ill populations; hospice and palliative care services; home health care services; employee assistance services, namely, providing on-line, telephonic, and in person consultation, information, assessment, and referral services for physical health, mental health, substance abuse and daily living problems; healthcare utilization and review services; medical case management and disease management services, namely, medical referral of individuals to appropriate health management programmes; providing health related consumer information and information about health providers via a global computer network; arranging for medical care provided by others for elderly and chronically ill populations; drug utilization review (DUR) programmes; healthcare advocacy services to members of health benefit plans; individualized healthcare coordination services, namely, facilitating medical care services, behaviour health services, and healthcare management; case management services, namely, coordinating healthcare services provided to elderly and chronically ill populations by doctors and other health care providers; case management services, namely, coordination of necessary medical services, social services, personal care services
Class: 45 Verification of physician credentials; computer services, namely, testing the electronic data interchange transactions of others for the purpose of certification and for compliance with healthcare industry and electronic data interchange laws, including the health insurance portability and accountability act; fraud detection, prevention, and recovery services in the field of health care insurance; compiling and analyzing statistical health data in order to uncover and identify health care fraud and claims errors

Optum Composite Mark: Services
Class: 35 Health care utilization management services; cost containment; business consultation services in the fields of health care, health benefits and health care systems; retail pharmacy services provided via a network of retail pharmacies; managed care services, namely, utilization review and pre-certification services; medical cost management; organizing and administering networks of health care providers; providing medical business directory information services regarding health care professionals and health care provider organizations; promoting the medical services of others by dissemination of prior effectiveness record information indicating that the providers meet certain criteria; development and administration of group purchasing programs as a value-added employee benefit; medical and health-care cost/price analysis; administration of a discount program for enabling participants to obtain health care services from a network of health care providers; cost management services for health benefit plans of others; business management consultation, namely, development of health care delivery systems for independent practice associations, medical clinics and other forms of physician organizations; business consultation to the health care industry in the fields of the development and implementation of policies, practices, and quality assurance; promoting the sale of credit card and debit card accounts through the administration of a discount program for enabling participants to obtain discounts on goods and services through use of discount membership cards and purchasing with a credit card or debit card; promoting the goods and services of others through the distribution of discount membership cards; accounts receivable services; administration and reconciliation of accounts on behalf of others; administration of business payroll for others; health care and medical practice administration services, namely, providing back office services for physician practices, medical billing services; health care and medical business services, namely, development of systems for health care delivery between businesses; managed health care services, namely, electronic processing of health care information; providing information in the field of business administration of health care and medical practices; consultation in the field of management, operation, and development of business systems for the delivery of health care; healthcare management service organization (MSO) services, namely, providing practice organization, management and administrative support services to individual physicians or small group practices; administration of pharmacy reimbursement programs; cost management services for pharmacy benefit and prescription drug benefit plans of others; business management of pharmacy benefit plans and prescription drug benefit plans of others; mail order services featuring prescription medications, specialty pharmaceuticals, over-the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; on-line retail store services featuring prescription medications, specialty pharmaceuticals, over- the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; retail drugstore and retail pharmacy services rendered by telephone featuring prescription medications, specialty pharmaceuticals, over-the-counter medications, diabetic products, health products, home care products, first aid products, foot care products, eye and ear care products, oral care products, skin care products, vitamins, nutritional supplements, and women's health products; physician practice and medical practice management for others; computerized database management in the fields of medical records and medical billing; on-line business and financial records management in the fields of medical records and medical billing; research in the nature of providing health economics and outcomes research and market informatics to the biotech and pharmaceutical industry; reimbursement consulting to the biotech and pharmaceutical industry in the nature of analyzing current health care payment program reimbursement policy and evaluating product cost-effectiveness for the purposes of product development, product approval and market acceptance; business consultation services for the healthcare industry; outsourcing services in the field of healthcare; computerized health care provider business data and information management in the fields of health care and insurance; providing on-line directory information service featuring electronic healthcare trading partners, namely, healthcare providers and claims processors and payers, including their electronic data interchange capabilities and requirements for healthcare transactions; providing an on-line computer database containing information concerning physician credentials for health care providers in the health care and insurance industries; providing temporary employment staffing for technical, scientific, and administrative positions for medical, pharmaceutical, and biotechnology research; providing data management and biostatistics services for the pharmaceutical and biotechnology industries; business consulting and outsourcing in the field of clinical and health economic research services for pharmaceutical, biotech, medical device companies, and other health care companies; management services of a business nature for clinical trials in the field of investigational drugs, namely, arranging for sites to perform clinical trials, arranging for the import, packaging, shipping, labelling, and distribution of drugs and other investigational supplies to and from the clinical trial sites, arranging for the central collection of laboratory specimens from clinical trial sites, regulatory submission management for investigational new drugs, and preparing statistical reports resulting from clinical trials; business research and consulting services in the nature of analysis of health care data and in the field of health care data analysis; computer generated information services, namely, providing customized on-line, non-downloadable computer databases featuring business data and information regarding drug prescriptions; conducting business research and surveys; conducting surveys in the field of health and wellness; organizing and administering networks of retail pharmacies; administration of pharmacy reimbursement programs and services; providing referral services to the elderly in the fields of health care and well-being, wellness and nutrition, medical equipment and medical supplies, transportation, housing and home repair, financial counselling and financial services, insurance services, community services and resources, home security systems and personal emergency response systems, and legal services.
Class: 36 Insurance claims administration; insurance claims processing; administration of pre-paid health care plans in the fields of chiropractic, physical medicine, and complementary and alternative medicines; insurance services, namely, underwriting insurance and reinsurance for pre-paid health care and health, life, dental, vision, and disability insurance; insurance underwriting in the field of excess risk, medical, life, and disability insurance, and insurance administration related thereto including managed care services; providing managed care optical benefits plans for others; insurance and financial services, namely, verifying insurance eligibility, processing and facilitating insurance copayment transactions, administration of employee benefits plans, banking services, credit card services, debit card services, issuing stored value cards, administering deposit and medical spending accounts, consumer lending services, electronic funds transfer, administration of defined contribution plans, administration of health care plans, health transaction clearinghouse services, management of revenue and expense transactions for providers of health and medical products and services; on-line services for health care practitioners, namely, providing transaction services to health care practitioners via an on-line computer network, namely, insurance eligibility and verification, referral authorizations, billing and payment in the insurance field; insurance brokerage; administration, financial management and maintenance of health savings accounts, medical savings accounts, health reimbursement arrangements and flexible spending accounts; offering consumer-driven health care plans, namely, underwriting, administration, financing, and maintenance of consumer-driven health care plans and defined contribution health care plans; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding daily living problems in the fields of retirement, life-event financial planning, and credit card and other debt; health savings account services, namely, providing banking services and savings account administration for consumer-driven health care plans and defined contribution health care plans; medical insurance services, namely, providing a qualified medical insurance plan with a tax advantaged medical savings account; business banking services; credit and debit card transaction processing services; investment consultation, brokerage and management services; financial investment services in the fields of securities, mutual funds, certificates of deposit, and portfolio management; accounts payable services; mortgage banking services, mortgage lending services, mortgage brokerage services; consumer loans and checking and savings account services; commercial lending services; issuing letters of credit; foreign exchange services, namely, foreign exchange transactions; foreign exchange information services and providing for the exchange of foreign currency; financial consultation for educational financial assistance and student loan services; treasury management services; trust management services; cash management services; on-line banking services; on-line business banking services; bill payment services; electronic processing and transmission of bill payment data; providing information regarding banking, credit, money management, investing, investments and financial matters; counselling in the field of banking and financial services; provision of consolidated reports of banking and financial activity; financial services, namely, mortgage loan services, home equity financing and revolving lines of credit; trustee services; administration of prescription drug benefit programs; administration of pharmacy benefit programs; prescription drug and pharmacy benefit claims processing services; pharmacy benefit management services; organizing and administering preferred provider plans for a network of pharmacy providers; providing on-line information in the field of pharmacy benefits; facilitating health related transactions via computer and communications networks, namely, electronic processing of health insurance claims and payment data; electronic bill payment services in the health care and insurance industries; claim recovery services for medical insurance payors; insurance consultation services for the healthcare industry; administration of health care service plans; insurance services, namely, claims administration of health care service plans; insurance underwriting and administration in the field of health care; administration of health care service plans and health care benefit plans for medical care services provided to elderly and chronically ill populations; providing business ratings on the financial condition of healthcare organisations
Class: 44 Hospital admission counselling services; patient health care support services in the nature of health care decision support counselling and health care planning for individuals at risk of needing intensive treatment; health care services, namely, disease management programs; providing health information; providing information on pharmaceuticals and healthcare; medication management services for cost containment purposes, namely assessing medication use history and providing information to health care providers and prescription drug benefit plan designers regarding medication use, options, and cost management; medical case management and disease management services, namely, disease-specific information and medical care resources to assist patients in managing their own health care and to reinforce the treatment plan; providing health information; providing information to physicians regarding prescription drugs and treatment guidelines; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding physical and mental health, and substance abuse; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information in the fields of ageing, chronic condition support, medications and drug interactions, special needs assistance, and pet care; employee assistance services, namely, providing on-line, telephonic and in-person consultation and information regarding daily living problems in the fields of parenting, childcare, and eldercare as they related to health and well being; providing information regarding the outcomes, structure, processes, and effectiveness of health care professionals and health care provider organizations to health plan members for use in evaluating and selecting health care professionals and health care provider organizations; nurse information services, namely, nurse triage and nurse call centers providing information regarding specific health-related concerns and general health issues; health care consulting and health care counselling services in the field of preventative health care and total health management, namely, establishing health risk assessment profiles to identify personal and group health risks, personal and group health risk counselling, health care counselling in the field of health risk intervention, health promotion, health risk and behaviour modification, and preventative medical assessment and screening; health care services, namely, preventative medical assessment and screening; consulting services in the field of medical triage protocols, policies, and practices; providing health care information on-line via computer and communications networks; providing information in the field of health and wellness; providing a web site featuring information in the field of health and wellness; managed health care services; providing in home health care and evaluations; providing health care information; health care in the nature of health maintenance organizations (HMOS), preferred provider organizations (PPOS) and consumer directed health plans, and fee for service medical services; conducting disease management programs for elderly and chronically ill populations; hospice and palliative care services; home health care services; employee assistance services, namely, providing on-line, telephonic, and in-person consultation, information, assessment, and referral services for physical health, mental health, substance abuse and daily living problems; healthcare utilization and review services; medical case management and disease management services, namely, medical referral of individuals to appropriate health management programmes; providing health-related consumer information and information about health providers via a global computer network; arranging for medical care provided by others for elderly and chronically ill populations; drug utilization review (DUR) programmes; healthcare advocacy services to members of health benefit plans; individualized healthcare coordination services, namely, facilitating medical care services, behaviour health services, and healthcare management; case management services, namely, coordinating healthcare services provided to elderly and chonically ill populations by doctors and other healthcare providers; case management services, namely, coordination of necessary medical services, social services, personal care services
Class: 45 Verification of physician credentials; computer services, namely, testing the electronic data interchange transactions of others for the purpose of certification and for compliance with healthcare industry and electronic data interchange laws, including the health insurance portability and accountability act; fraud detection, prevention, and recovery services in the field of health care insurance; compiling and analyzing statistical health data in order to uncover and identify health care fraud and claims errors
ANNEXURE 2
Opponent’s Registrations

No.	Number	Mark	Classes	Priority Date
1.	558808	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA; OPTUS INTERNATIONAL; OPTUS CELLULAR	9	02 JUL 1991
2.	558809	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA; OPTUS INTERNATIONAL; OPTUS CELLULAR	16	02 JUL 1991
3.	558811	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA; OPTUS INTERNATIONAL; OPTUS CELLULAR	35	02 JUL 1991
4.	558812	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA ; OPTUS INTERNATIONAL; OPTUS CELLULAR	38	02 JUL 1991
5.	558813	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA; OPTUS INTERNATIONAL; OPTUS CELLULAR	41	02 JUL 1991
6.	558814	OPTUS; OPTUS TELECOMMUNICATIONS; OPTUS COMMUNICATIONS; OPTUS AUSTRALIA; OPTUS INTERNATIONAL; OPTUS CELLULAR	42	02 JUL 1991
7.	578773	OPTUS	9	20 MAY 1992
8.	578774	OPTUS	16	20 MAY 1992
9.	578775	OPTUS	35	20 MAY 1992
10.	578776	OPTUS	38	20 MAY 1992
11.	578777	OPTUS	41	20 MAY 1992
12.	578778	OPTUS	42	20 MAY 1992
13.	663700	OPTUS WORLD	9, 16, 35, 38, 41, 42	13 JUN 1995
14.	663702	OPTUS WORLD	25	13 JUN 1995
15.	663707	9	13 JUN 1995
16.	663708	16	13 JUN 1995
17.	663709	25	13 JUN 1995
18.	663710	35	13 JUN 1995
19.	663711	38	13 JUN 1995
20.	663712	41	13 JUN 1995
21.	663713	42	13 JUN 1995
22.	724312	OPTUS TIME	38	19 DEC 1996
23.	724313	38	19 DEC 1996
24.	800311	OPTUS TELEVISION	9, 16, 35, 38, 41, 42	14 JUL 1999
25.	805840	OPTUS PRIVATE IP	38	02 SEP 1999
26.	814896	OPTUS FREETIME	38	24 NOV 1999
27.	835248	OPTUSNET	38, 42	15 MAY 2000
28.	870450	YES OPTUS	9, 16, 35, 38, 41, 42	26 MAR 2001
29.	883824	OPTUS SMARTPAY	38	26 JUL 2001
30.	923272	9, 16, 25, 35, 38, 41, 42	13 AUG 2002
31.	931078	OPTUS BUSINESS DIRECT	38	16 OCT 2002
32.	964637	OPTUS 4U	35, 38	05 AUG 2003
33.	964689	35, 38	05 AUG 2003
34.	971339	38, 42	22 SEP 2003
35.	1034088	OPTUSNET WIRELESS	38	13 DEC 2004
36.	1034089	OPTUSNET MOBILE	38	13 DEC 2004
37.	1034090	OPTUSNET WIRELESS BROADBAND	38	13 DEC 2004
38.	1034091	OPTUSNET MOBILE BROADBAND	38	13 DEC 2004
39.	1078639	OPTUS SIM BACKUP	9, 38	04 OCT 2005
40.	1109609	OPTUS BILLSCAN	38	20 APR 2006
41.	1110558	OPTUS SMS RECHARGE	38	27 APR 2006
42.	1130878	OPTUS IP PHONE EXPRESS	38	22 AUG 2006
43.	1130883	OPTUS IP PHONE PREMIER	38	22 AUG 2006
44.	1133066	OPTUS EARLYPAY	36	01 SEP 2006
45.	1181095	OPTUS FUSION	38	12 JUN 2007
46.	1181631	OPTUS EVOLVE	38	14 JUN 2007
47.	1191314	OPTUS YES FUSION	38	06 AUG 2007
48.	1194106	OPTUS SECURECAM	38	20 AUG 2007
49.	1237223	OPTUS CONNECTING COMMUNITIES GRANTS PROGRAM	35, 36	28 APR 2008
50.	1250867	OPTUS IZOO	9, 16, 35, 38, 41, 42	10 JUL 2008
51.	1266477	OPTUS CONNECT & GO	9, 38	09 OCT 2008
52.	1280234	OPTUS YES FUSION LITE	38	08 JAN 2009
53.	1318063	OPTUS AUTO RECHARGE	9, 38	31 AUG 2009
54.	1323745	OPTUS BOOMERANG AFTER SALES CARE	37	02 OCT 2009
55.	1330702	OPTUS VOICE TO TEXT	9, 38	11 NOV 2009
56.	1342687	OPTUS TURBO CAP	38	28 JAN 2010
57.	1342694	OPTUS PREPAID TURBO CAP	38	28 JAN 2010
58.	1345808	OPTUS TURBO TEXT	38	16 FEB 2010
59.	1345809	OPTUS TURBO MAX	38	16 FEB 2010
60.	1373422	OPTUS REWARDS	35	21 JUL 2010
61.	1373428	OPTUS MOVIE REWARDS	35	21 JUL 2010

[2016] ATMO 11

5 February 2016