Southcorp Brands Pty Limited v Eastern Tomorrow Jinjiang Import & Export Co Ltd

[2018] ATMO 118

TRADE MARKS ACT 1995

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

Re:Opposition by Southcorp Brands Pty Limited to registration of trade mark applications 1793525, - EASON'S RETREAT (Device); 1793526, RUSH RICH MASTER'S LEGEND (Device); and, 1793527 RUSH RICH (Device) - each in Class 33 - in the name of Eastern Tomorrow (Jinjiang) Import & Export Co Ltd.

Delegate:	Iain Campbell Thompson
Representation:	Opponent: Ben Fitzpatrick of Counsel instructed by Wrays Applicant: Self represented – did not appear or file written submissions
Decision:	2018 ATMO 118 Trade Marks Act 1995 Section 52 opposition to registration; section 62A – history of Applicant and dealings with the Opponent’s intellectual property: Applications made in bad faith – registrations refused.

Background

1. In these proceedings under section 52 of the Trade Marks Act 1995 (‘the Act’) Eastern Tomorrow (Jinjiang) Import & Export Co Ltd (‘the Applicant’) has applied to register the trade marks which appear below:

Application No:         1793525

Priority Date:             31 August 2016

Goods:Class 33: Wine; Aperitifs; Rice alcohol; Liqueurs; Digesters (liqueurs and spirits); Spirits (beverages); Brandy; Vodka; Baijiu (Chinese distilled alcoholic beverage); Fruit extracts (alcoholic)

Trade Mark:               

(‘the Easons’s Trade Mark’)

________________________________________________

Application No:         1793526

Priority Date:             31 August 2016

Goods:Class 33: Wine; Aperitifs; Rice alcohol; Liqueurs; Digesters (liqueurs and spirits); Spirits (beverages); Brandy; Vodka; Baijiu (Chinese distilled alcoholic beverage); Fruit extracts (alcoholic)

Trade Mark:               

(‘the Master’s Trade Mark’)

_____________________________________________

Application No:         1793527

Priority Date:             31 August 2016

Goods:Class 33: Wine; Aperitifs; Rice alcohol; Liqueurs; Digesters (liqueurs and spirits); Spirits (beverages); Brandy; Vodka; Baijiu (Chinese distilled alcoholic beverage); Fruit extracts (alcoholic)

Trade Mark:               

(‘the Rush Trade Mark’)

_____________________________________________

1. I will refer to the above trade marks collectively as ‘the Opposed Trade Marks’.

2. The Opposed Trade Marks were examined as is prescribed by section 31 of the Act and advertised as accepted for possible registration on 2 February 2017 in the Australian Official Journal of Trade Marks.

3. On 2 February 2017, Southcorp Brands Pty Limited (‘the Opponent’) filed Notices of Intention to Oppose the registration of the Opposed Trade Marks.

4. On 2 March 2017, the Opponent filed its Statements of Grounds and Particulars detailing grounds under sections 60, 42, 62A, and, in relation to the Eason’s Trade Mark, section 44 citing Australian trade mark registrations 630694 and 1610122.

5. On 6 April 2017, the Applicant filed Notices of Intention to Defend.

6. Thereafter, on 13 July 2017, the Opponent filed its Evidence in Support of the opposition.  This comprises declarations in relation to each of the Opposed Trade Marks by Anna Gabrielle Gibson, Director, Intellectual Property, of the Treasury Wine Estates Limited (‘TWE’) group of companies (which includes the Opponent) made on 13 July 2017, with Confidential Annexure A and Exhibits AGG-1 to AGG-7.  I will mention now that:

   Exhibit AGG-1 is a declaration by Owen John Malone, the previous Director, Intellectual Property of TWE, made on 17 February 2017, with Exhibits OJM-1 to OJM-12, in relation to the Opponent’s earlier opposition to the registration of Australian trade mark applications 1757197 and 1757198; and

   Exhibits AGG-2 is a declaration by Liz Ge, made on 11 July 2017, with Exhibit LG-A1 (Exhibit LG-A1 is a declaration, with exhibits, made by Ms Ge on 17 February 2017) in relation to the Opponent’s earlier opposition to the registration of Australian trade mark applications 1757197 and 1757198.

7. The Applicant did not filed any Evidence in Answer or, indeed, take any further part in these proceedings.

8. Both parties were informed of their right to be heard or to make written submissions.  The Opponent elected to be heard; as a delegate of the Registrar of Trade Marks I heard the submissions of the Opponent at a hearing in Canberra on 18 June 2018.  Mr Ben Fitzpatrick of Counsel, instructed by Wrays, represented the Opponent and supplemented his representations with written submissions.  As earlier intimated, the Applicant did not appear or make written submissions.

Grounds of Opposition, Onus and Relevant Date

1. At the hearing of the matters Mr Fitzpatrick primarily pressed the Opponent’s arguments in terms of section 62A of the Act and I will both outline the Opponent’s evidence and decide these matters in terms of that section. To succeed, the Opponent bears the onus of establishing the ground with the relevant standard of proof required being the ordinary civil standard based on the balance of probabilities.[1]  The date at which the parties’ rights are to be determined is the 31 August 2016 filing date of the applications (‘the Relevant Date’).[2]

   [1] Following Gyles J in Pfizer Products Inc v Karam (2006) 70 IPR 599 at [6] to [26], affirmed by the Full Federal Court (Besanko, Jagot & Edelman JJ) in Telstra Corporation Limited v Phone Directories Company Pty Ltd (2015) 116 IPR 207 at [132]-[133].

   [2] Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 595.

Context

1. These matters are closely interrelated with the proceedings Southcorp Brands Pty Limited v Eastern Tomorrow Jinjiang Import and Export Co Ltd[3] (‘Eastern’).  Those matters concerned the Opponent’s opposition to the registration of the trade marks hereunder:

   [3] [2018] ATMO 38.

Application No:         1757197

Priority Date:             7 March 2016

Goods:Class 33: Fruit extracts (alcoholic); Baijiu (Chinese distilled alcoholic beverage); Vodka; Brandy; Spirits (beverages); Digesters (liqueurs and spirits); Liqueurs; Rice alcohol; Aperitifs; Wine

Trade Mark:               

(‘the Rush Rich Trade Mark’)

___________________________________________

Application No:         1757198

Priority Date:             7 March 2016

Goods:Class 33: Fruit extracts (alcoholic); Baijiu (Chinese distilled alcoholic beverage); Vodka; Brandy; Spirits (beverages); Digesters (liqueurs and spirits); Liqueurs; Rice alcohol; Aperitifs; Wine

Trade Mark:               

(‘the Chinese Characters Trade Mark’)

Endorsement:             The applicant has advised that the CHINESE characters appearing in the trade mark may be transliterated as BEN FU which may be translated into English as RUSH; RICH

___________________________________________

1. The Registrar’s delegate found:[4]

   [4] Unless otherwise indicated, I here adopt Mr Fitzpatrick’s summary of the delegate’s findings, relevant to the matters before me.

   · As early as 1995 [the Opponent] had decided to expand its Penfolds brand wine into China and over the next few years it decided to adopt an exclusive distributor for its Penfolds wine in China which would be marketed, inter alia, under the Chinese characters  (‘the Chinese Characters’ which formed part of the Chinese Characters Trade Mark’);[5]

   [5] Eastern at [47].

   ·     I interpose that the Applicant has advised that the Chinese characters appearing in the trade mark may be transliterated as BEN FU and translated into English as ‘Rush Rich’;[6]

   ·     That ‘Ben Fu’ is the phonetic equivalent of ‘Penfolds’ in English;[7]

   ·     The inclusion of the words RUSH RICH in the Chinese Character Trade Mark by the Applicant may be an attempt to hide the meaning that underlies the pronunciation of the Chinese characters in addition to the questionable endorsement filed in respect of the Chinese Character Trade Mark;[8]

   ·     The benfucn.com website is owned by the Applicant or at the very least a body connected with the Applicant and at the Relevant Date contained images of a winery associated with the Opponent;[9]

   ·     Pictures of ‘Magill Estate’ winery and restaurant, other of the Opponent’s proprietary images and material including photos of Penfolds wine making staff appeared on the benfucn.com website associated with the Applicant without the Opponent’s consent. The website was essentially the Opponent’s penfolds.com website in Chinese language;[10]

   ·     This was a flagrant attempt to pass off some association with Penfolds wine. The rendering of the Rush Rich mark in red font on a white background in the exhibits was a blatant attempt by the Applicant to pass its wine products off as being or associated with the Penfolds brand, noting that the [Opponent] also uses these colours in association with the Penfolds brand;[11]

   ·     Whilst it may the case that the Opponent has not been able to definitively show that the Applicant is connected to the benfucn.com website (because the Applicant has used so many different company names), the evidence shows: The Applicant has a common shareholder with Bao Le Li Jia Wines Co., Ltd, the owner of the Rush Rich Trade Mark in China; both the Chinese Character Trade Mark and the Rush Rich Trade Mark are being used in China, in the course of trade, in close connection to Penfolds and/or with photos taken from the Treasury’s penfolds.com website. This association resulted in legal action in China, with a finding for the Opponent;[12]

   ·     It is more probable than not that the Applicant and/or its associated companies have tried to pass off the Rush Rich Trade Marks as being used in connection with Penfolds wine or as if having some endorsed relationship with TWE in China. Given the benfucn.com website and the sales catalogue in LG-1 reinforces this association, it is reasonable to infer that is exactly what the Applicant intends to do with the applications in Australia;[13]

   ·     The Applicant has attempted to usurp for itself the Penfolds brand’s reputation by leveraging an ambiguity around the same trade marks it is using in China which include the phrase ‘Rush Rich’ and/or the Chinese characters which would be understood by the significant proportion of Australians bilingual in both English and Mandarin Chinese to indicate Penfolds;[14] and

   ·     A person standing in the Applicant’s shoes should have known that it should not apply for the registration of the Opposed Trade Marks. The Applicant’s conduct falls short of the ‘standards of acceptable commercial behaviour observed by reasonable and experienced persons’.[15]

   [6] Eastern at [1].

   [7] Eastern at [47].

   [8] Eastern at [48].

   [9] Eastern at [49].

   [10] Eastern at [49].

   [11] Eastern at [50].

   [12] Eastern at [52].

   [13] Eastern at [54].

   [14] Eastern at [55].

   [15] Eastern at [56].

The Opponent

1. The Opponent’s evidence establishes that TWE is a substantial business, being one of the world’s largest premium wine producers. Following its separation from Foster’s Group’s beer, cider and spirits business in 2011, it became the world’s largest listed stand-alone wine company.  TWE has an extensive portfolio of in excess of 80 brands servicing markets across 5 continents, and a stable of premium wine brands including internationally recognised trade marks such as Wynns, Penfolds, Wolf Blass, Beringer, Blossom Hill, Lindemans and Rosemount.  TWE controls more than 15,000 hectares of vineyards in the premium wine growing regions of the Barossa Valley and McLaren Vale in Australia, the Napa Valley in California, New Zealand and Italy and operates more than 20 wineries throughout the world.[16]

   [16] Malone [6].

2. The ‘Penfolds’ brand, owned by the Opponent, is long established, and one of the world’s most famous wine brands, having been in existence since 1844.[17]  It was crowned the ‘World’s Most Admired Wine Brand’ by Drinks International in March 2016.[18]

   [17] Malone [9].

   [18] Malone [10] and Exhibit AGG-4.

3. The Opponent states that the Chinese Characters and the word ‘Penfolds’ are synonymous being the Chinese character version of the word ‘Penfolds’ which transliterate to ‘Ben Fu’ being a Chinese phonetic approximation of those Chinese characters.[19]

   [19] Ge [9] of Exhibit LG-A1.

4. To my personal knowledge it is the practice of Western companies wishing to market their goods in China to adopt Chinese character trade marks which both have some phonetic resemblance to their trade marks and have some positive meaning to Chinese speakers.  Thus, for example, Reebok has adopted the Chinese characters which denote ‘Rui bu’ and mean ‘quick steps’, Nike has adopted ‘Nai ke’ meaning ‘enduring and persevering’, and Pentium has adopted ‘Ben teng’ which means ‘galloping’.[20]

   [20] >

   In around 1995 Whitehorse Holdings, based in Guangzhou, China, was appointed by the Opponent’s related company Southcorp Wines Asia Pty Ltd as the exclusive distributor in China for ‘Penfolds’ wines.

5. The owner of Whitehorse Holdings, Mr William Han, translated the English version of the ‘Penfolds’ brand to the Chinese name ‘Ben Fu’ as a Chinese phonetic approximation of ‘Penfolds’.  Mr Han also recommended that Southcorp Wines adopt the Chinese character version of this name for 'Penfolds' in China: [21]

   [21] I note application 1762317 (33) comprised of this trade mark, filed by Southcorp Brands Pty Limited, was accepted for possible registration on 10 May 2018 in respect of ‘wine’.

6. The Opponent’s application for the registration of the above trade mark has been accepted for possible registration in Australia:

Application No:         1762317

Priority Date:             1 Apr 2016
Goods:  Class 33: Wine

Trade Mark:               

1. I note that the Opponent advises that “The Chinese characters in the [above] trade mark may be transliterated as BEN FU and translated into English as MARCH TO PROSPERITY or EMBRACE PROSPERITY”.

The Applicant

1. The Applicant has filed no evidence and thus all that is known about it stems from what can be inferred from the Opponent’s evidence.  I would characterise this as a seeming determination to appropriate the Opponent’s trade marks and other intellectual property for itself or its associated companies and a resolve to use both the Opponent’s trade dress and the associated images which the Opponent owns in order to either misappropriate the Opponent’s commercial mantle or alternatively to suggest a close association with the Opponent which does not exist.

Section 62A

1. Section 62A of the Act provides:

   62A  Application made in bad faith

   The registration of a trade mark may be opposed on the ground that the application was made in bad faith

Statement of Grounds and Particulars – the Eason’s Trade Mark

1. In its Statement of Grounds and Particulars the Opponent asserts:

   The opposed trade mark is represented in the same manner as the Opponent's unregistered trade mark and is also deceptively similar to the Opponent’s trade marks, subject of registration nos. 630694 and 1610122.  Further, the Opponent has reason to believe that wines bearing the opposed trade mark are destined for export to the Chinese market in order to compete unfairly with the Opponent’s products there.  The Opponent therefore believes the Applicant filed the application with the intention of gaining some benefit from the reputation subsisting in the Opponent’s trade marks.  Such conduct falls short of commercially acceptable behaviour.

2. I here note that details of the registrations referred to by the Opponent are:

Registration No:         630694

Priority Date:             26 May 1994
Goods:   Class 33: Wines
Trade Mark:               RAWSON'S RETREAT

Endorsements:           Registration gives no right to the exclusive use of the word RAWSON'S.

Registration No:         1610122

Priority Date:             7 March 2014

Goods:Class 32: Alcohol free wine; De-alcoholised wines; Low alcohol wine containing not more than 1.15% (by volume) of alcohol

Class 33: Wine

Trade Mark:               

1. And the unregistered trade mark referred to in the Statement of Grounds and Particulars is:

(‘the Rawson’s Retreat Trade Mark’)

Statement of Grounds and Particulars – the Master’s Trade Mark and the Rush Trade Mark

1. In its Statement of Grounds and Particulars the Opponent asserts:

   It can be reasonably inferred that the Applicant is merely attempting to gain some trade mark protection in Australia because it know that its co-pending (and opposed) application no 1757198 is at risk of being successfully opposed by the Opponent on the basis that the trade mark the subject of that application contains a Chinese character trade mark that it misappropriated from the Opponent.  Therefore [the Master’s Trade Mark and the Rush Trade Mark] were filed as back-up with a view to obtaining some protection for the ‘Rush Rich’ elements which is asserts in co-pending application no 1757198 is the anglicised version of the Chinese characters in that trade mark.  For these reason the Opponent believes that the Applicant filed the application knowing full well that its application no 1757198 was likely to fail because of the misappropriation from the Opponent of the Chinese character elements of that trade mark.  That conduct falls short of commercially acceptable standards of behaviour.

Submissions

1. Mr Fitzpatrick submitted:

   The Applicant has previously asserted in an earlier application that the words ‘RUSH RICH’ are an anglicised version of the Chinese characters .

   Ms Ge’s evidence, with respect to the endorsement provided by the Applicant in relation to its Application No 1757198, is that it has advised, correctly, that the Chinese characters may be transliterated as BEN FU but, incorrectly, that they may be translated as RUSH; RICH.

   The Applicant is representing that the Chinese characters 奔富 mean something different, that is, that they mean RUSH RICH, when they do not. The Applicant’s conduct is calculated to deceive Chinese and Chinese speaking consumers by conditioning those consumers to think that RUSH RICH is and vice versa, and therefore by reason of the Opponent's reputation, that it is BEN FU and, by simple extension, PENFOLDS or a wine product related to PENFOLDS.

   The Applicant has provided no explanation for this conduct. It falls well short of the standard of reasonable commercial behaviour.

Discussion

1. The allegations of bad faith regarding the Opposed Applications must be considered when set against the behaviour of the Applicant at the time of filing the Applications.  I concur with the Opponent’s submission that this includes:

   ·     The attempted misappropriation of Treasury Wine Estates’ and the Opponent’s business, including its trade marks, brands, imagery, advertising material and heritage. Attached as part of Exhibit AGG-7 to Ms Gibson’s declaration is a chart, and associated official documents, which shows the interrelated nature and ownership structure of the Applicant and its associated entities, being the so-called ‘Rush Rich’ entities being:

   oEastern Tomorrow (Jinjiang) Import & Export Co., Ltd (the Applicant).

   oJinjiang Pernod Ricard Wine Co., Ltd.

   oShanghai Huan Yan International Trade Co., Ltd.

   oRUSH RICH International Trading Co., Ltd

   ·     The Chinese trade name of RUSH RICH International Trading Co Ltd is 奔富 (Ben Fu), which is asserted by the Applicant as corresponding to RUSH RICH. The legal representative of this company is the Chinese individual Pan Ruxian and one of the sponsors of this company is Eastern Tomorrow (Jinjiang) Import & Export Co., Ltd. The legal representative of Shanghai Huan Yan International Trade Co., Ltd is Pan Ruxian.

   ·     Exhibit LG-1 to the Ge declaration filed in the earlier proceeding is an extract from a sales catalogue produced by or on behalf of the Applicant or by a closely related company. The Chinese characters 奔富 are used repeatedly, including immediately beneath the Rush Rich logo  in which the Chinese characters below the logo may be translated as ‘Australian Penfolds Vineyard’.

   ·     At the Relevant Date the website associated with the Applicant was a direct copy into Chinese of the Opponent’s website at complete with the same photographs;

   ·     Although the website was mainly in Chinese, at the Relevant Date it contained false and misleading references to ‘Penfolds’ and to Treasury Wine Estates’ ‘Penfolds’ wine business as if it were the Applicant’s own. This includes photographs of the Magill Estate winery and restaurant, and other proprietary images and material including images of Penfolds staff which were illegally copied directly from Treasury Wine Estates’ website at Reproduced below are a sample of photographs from the website that have been and reproduced on the benfucn.com website without Treasury Wine Estates’ or the Opponent’s authority.

1. After referring to the judgment of Dodds-Streeton J in Fry Consulting v Sports Warehouse Inc (No 2)[22] Bennett J, in DC Comics v Cheqout Pty Ltd, [23]stated:

   [22] [2012] FCA 81; (2012) 201 FCR 565

   [23] [2013] FCA 478; (2013) 212 FCR 194; (2013) 299 ALR 110; (2013) 101 IPR 334.

61.Justice Dodds-Streeton observed (at [163]) that the examples of bad faith given in the Explanatory Memorandum are predominantly, but not exclusively, manifestations of blocking or holding to ransom a party which is, at least in conscience, entitled to a mark. However, her Honour noted that the illustrations are merely inclusive and do not limit the breadth of the concept of bad faith. Her Honour observed (at [145]) that the bad faith must be at the time of the application, that the onus is on the opponent seeking to establish bad faith and that the standard of proof is on the balance of probabilities.

Given limited Australian authority, her Honour (at [145]–[166]) also considered relevant authorities from the United Kingdom. These cases stated, relevantly:

oBad faith is a serious allegation and the more serious the allegation, the more cogent the evidence required to support it.

oBad faith does not require dishonesty.

oBad faith is a combined test that involves subjective and objective elements. The subjective element refers to the knowledge of the relevant person at the time of making the application. The objective element requires the decision-maker to decide whether, in the light of that knowledge, the relevant person’s behaviour fell short of acceptable commercial standards.

oThe question is whether the conduct falls short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons in the particular area. It is whether the knowledge of the applicant was such that the decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.

oIt is difficult to see how a person who applies to register, in his own name, a mark he has previously recognised as the property of a potential overseas principal can be said to be acting in accordance with acceptable standards of commercial behaviour. Combining the mark with the applicant’s own name is no answer to that criticism.

oThe registration of a trade mark is designed to enable bona fide proprietors to protect their proprietary rights without having to prove unfair trading.

oAll the circumstances surrounding the application to register the mark are relevant.

oAn act of bad faith cannot be cured by an action after the date of application.

Justice Dodds-Streeton concluded (at [164]) that bad faith in the context of s 62A does not require (although it includes) dishonesty or fraud and that it is a wider notion, potentially applicable to diverse species of conduct. Her Honour rejected the proposition that mere awareness that an overseas company owning the mark operated or intended to operate in Australia would amount to bad faith, concluding that this would be unduly absolute. Justice Dodds-Streeton instead adopted as a touchstone the United Kingdom formulation of conduct falling short of the standards of acceptable commercial behaviour observed by reasonable and experienced persons (at [165]). Her Honour observed that the applicant’s mental state is also relevant, and stated (at [166]) that:

... mere negligence, incompetence or a lack of prudence to reasonable and experienced standards would not, in themselves, suffice as the concept of bad faith imports conduct which, irrespective of the form it takes, is of an unscrupulous, underhand or unconscientious character.

1. In the application of the above to the circumstances before me I am mindful of the principle in Australian Woollen Mills Ltd v F S Walton & Co Ltd (‘Walton’):[24]

   But the examination made of the respondent's motives and good faith seems to us to leave the question of infringement and passing off very much in the same position as it stood in without it. The rule that if a mark or get-up for goods is adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for the purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is wholesome in tendency. In a question how possible or prospective buyers will be impressed by a given picture, word or appearance, the instinct and judgment of traders is not to be lightly rejected, and when a dishonest trader fashions an implement or weapon for the purpose of misleading potential customers he at least provides a reliable and expert opinion on the question whether what he has done is in fact likely to deceive. Moreover, he can blame no one but himself, even if the conclusion be mistaken that his trade mark or the get-up of his goods will confuse and mislead the public.

   [24] (1937) 58 CLR 641.

2. Here there is seemingly no question about the Applicant’s motives or good faith and the Applicant has advised the Registrar of Trade Marks that the Chinese characters within the Chinese Characters Trade Mark may be translated into English as RUSH RICH and that those characters may be transliterated as BEN FU, which is the Opponent’s Penfolds trade mark in Chinese.  In view of the foregoing and the parties’ dealings with each other, it is difficult to ascribe any motives to the Applicant’s filings of the two opposed trade marks which include the words RUSH RICH that do not involve ‘bad faith’.  I therefore find that the applications to file the Rush Trade Mark and the Masters Trade Mark were made in bad faith.

3. As regards the Eason’s Trade Mark, it is similar to the Opponent’s registered Rawson’s Retreat trade marks and bears a striking resemblance to the unregistered and well-known Rawson’s Retreat Trade Mark, above.  I find, (in view of the Applicant’s history and the parties’ dealings with each other) that the Eason’s Trade Mark is to be presumed fit for the purpose for which it is designed in terms of Walton, above, and consequently that the Eason’s Trade Mark was filed in bad faith.

4. Accordingly, the Opponent has established its opposition to the registration of the Opposed Trade Marks.

Decision

1. Section 55 of the Act relevantly provides:

   55Decision

   (1)Unless subsection (3) applies to the proceedings, the Registrar must, at the end, decide:

   (a)to refuse to register the trade mark; or

   (b)to register the trade mark (with or without conditions or limitations) in respect of the goods and/or services then specified in the application;

   having regard to the extent (if any) to which any ground on which the application was opposed has been established.

   Note:For limitations see section 6.

2. I refuse to register trade mark applications 1793252, 1793526, and 1793527.

Costs

1. The Opponent sought its costs in the event that it was successful in these oppositions and, in terms of section 221 of the Act, I accordingly award costs against the Applicant at the official scale set out at Schedule 8 to the Trade Marks Regulations 1995.

Iain Campbell Thompson
Hearing Officer
Trade Marks and Designs Oppositions and Hearings
25 July 2018