Trade mark application number 2105351 (class 5) – - in the name of Amazonia IP Holdings Pty Ltd

[2021] ATMO 110

TRADE MARKS ACT 1995

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

Re:Trade mark application number 2105351 (class 5) –  - in the name of Amazonia IP Holdings Pty Ltd

Delegate:

M. Cooper

Representation:

Applicant: Peter Creighton-Selvay of counsel instructed by KCL Law

Decision:

2021 ATMO 110

Trade Marks Act 1995 (Cth) – section 33 proceedings – ground for rejection under s 41 – trade mark to some extent inherently adapted to distinguish – evidence of use insufficient - application rejected.

Background

1. On 22 July 2020, Amazonia IP Holdings Pty Ltd (‘Applicant’) filed an application to register the trade mark detailed below under the Trade Marks Act 1995 (Cth) (‘the Act’).

Trade Mark No:	2105351
Trade Mark:	(‘Trade Mark’)
Specification:	Class 5: Food supplements (dietary supplements); Dietary supplements; Vitamin supplements; Nutritional supplements; Dietary food supplements; protein supplements (‘Goods’).[1]

[1] See paragraph 19 below.

1. The application was examined and a grounds for rejection were raised under s 44 and s 41(3) of the Act. The Applicant responded providing a declaration and evidence of use. The examiner, while withdrawing the s 44 objection, maintained the s 41 objection in two further reports on the basis that the word was one with an ordinary meaning and ‘[o]ther traders who also provide similar goods to you will likely need to use the word RAW when describing their similarly claimed goods for its ordinary meaning, and should be able to do so.’

2. Following receipt of the third adverse examination report the Applicant requested to be heard.

3. I heard the matter as a delegate of the Registrar on 7 July 2021. Peter Creighton-Selvay of counsel appeared for the Applicant.

4. At the hearing I raised issues associated with the examiner’s research[2] (discussed further below) and allowed the Applicant further time to respond to the issues identified. Those additional submissions were received on 15 July 2021.

   [2] That is, the Research Facility Report generated 16 March 2021 (‘examiner’s research’).

5. In making my decision I have had regard to counsel’s written and oral submissions and, as discussed at the hearing, the written record including the application, the examiner’s research and reports and the Applicant’s responses with the associated declarations and exhibits of Chris Norden, the Applicant’s Director, dated 20 January 2021 (‘Norden 1’) and 29 June 2021 (‘Norden 2’).

Evidence

1. The Applicant’s evidence indicates that it is was incorporated on 15 August 2012 and ‘is a leading supplier of health food products and health food ingredients throughout Australia.’ Its products are stated to be available ‘at all leading health food stores, independent supermarkets, vitamin shops, pharmacies, cafes, restaurants and juice bars throughout Australia.’ It purchases ingredients and products which it packages and sells through a variety of outlets, including Chemist Warehouse.

2. In Norden 1 the deponent asserts significant sales under the Trade Mark from 2013 to 2020 and exhibits Google Analytics data for its website for 2018 to 2020 showing over 1 million page views. Extracts from the Applicant’s Instagram and Facebook pages in December 2020 are also exhibited which show promotion and marketing of the Goods. A photograph of the Applicant’s products in a vitamin and health food store is also exhibited as is a table listing appearances of the Applicant’s products in various magazines and television shows in the period 30 April to 24 August 2020. The deponent maintains the coexistence of the Trade Mark with the cited Australian registered trade marks[3], which each incorporate the word ‘Raw’ in relation to class 5 goods, negates the risk of any consumer confusion.

   [3] Australian registered trade marks 1464795: ‘RAW’ stylised; 1469843: raw superfoods (stylised); 1635148: RAW ESSENTIALS; 1713236: Raw World Organics; 1946171: Raw Nutrients (with device); 1963144: Raw Medicine (stylised with device); 2096351: Raw In (with device).

3. Norden 2 exhibits a spreadsheet showing product sales over July 2017 to June 2021. Another excel spreadsheet shows the product specifications for all the Applicant’s products sold under the Trade Mark, the deponent noting that none of the Goods’ ingredients are ‘raw’, having been through ‘one or more multiple forms of treatment and processing.’  He further states that ‘[t]o the extent that vitamin content might occur naturally in certain food products, that vitamin could, theoretically, be described as “raw”. However, a vitamin supplement cannot be described as “raw” in any relevant sense.’ The deponent further states that the Applicant abandoned use of its Amazonia sun logo   (1750828) or (1538834) on its ‘Raw’ cylindrical packaging in or around November 2019 but maintains that the Trade Mark has operated as a badge ‘separate and distinct from other branding indicia’ since 2014. Wayback Machine extracts are said to demonstrate this. In addition, the display of the products in retail stores is said to have ‘obscured or de-emphasised any other branding elements.’

Legislation

1. Section 33 of the Act requires that the Registrar must accept an application for registration unless satisfied that there is a ground for rejecting it. That is, ‘a mark will be presumed registrable unless the Registrar is satisfied, on the balance of probabilities, that a ground to reject it exists’.[4] The relevant date of assessment is the filing date (‘relevant date’).[5]

   [4] Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891 [146]. As also confirmed by the Explanatory Memorandum to the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 at page 146.

   [5] Apple Inc v Registrar of Trade Marks [2014] FCA 1304 [59]; (2014) 227 FCR 511.

2. I note that my task is not to review the examiner’s decisions but to consider the application afresh.

3. Section 41 of the Act relevantly provides as follows:

   Trade mark not distinguishing applicant's goods or services

   (1)  An application for the registration of a trade mark must be rejected if the trade mark is not capable of distinguishing the applicant's goods or services in respect of which the trade mark is sought to be registered (the designated goods or services) from the goods or services of other persons.

   Note:          For goods of a person and services of a person see section 6.

   (2)  A trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons only if either subsection (3) or (4) applies to the trade mark.

   (3)  This subsection applies to a trade mark if:

   (a)  the trade mark is not to any extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons; and

   (b)  the applicant has not used the trade mark before the filing date in respect of the application to such an extent that the trade mark does in fact distinguish the designated goods or services as being those of the applicant.

   (4)  This subsection applies to a trade mark if:

   (a)  the trade mark is, to some extent, but not sufficiently, inherently adapted to distinguish the designated goods or services from the goods or services of other persons; and

(b)  the trade mark does not and will not distinguish the designated goods or services as being those of the applicant having regard to the combined effect of the following:

(i)  the extent to which the trade mark is inherently adapted to distinguish the goods or services from the goods or services of other persons;

(ii)  the use, or intended use, of the trade mark by the applicant;

(iii)  any other circumstances.

Note 1:       Trade marks that are not inherently adapted to distinguish goods or services are mostly trade marks that consist wholly of a sign that is ordinarily used to indicate:

(a)    the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services; or

(b)    the time of production of goods or of the rendering of services.

Note 2:       For goods of a person and services of a person see section 6.

Note 3:       Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (5) and 7(3) and section 8).

(5)  For the purposes of this section, the use of a trade mark by a predecessor in title of an applicant for the registration of the trade mark is taken to be a use of the trade mark by the applicant

1. According to the oft-cited statement of Kitto J in Clark Equipment Co v Registrar of Trade Marks (‘Clark Equipment’), inherent adaptation to distinguish is to be tested:

   by reference to the likelihood that other persons, trading in goods of the relevant kind and being actuated only by proper motives - in the exercise, that is to say, of the common right of the public to make honest use of words forming part of the common heritage, for the sake of the signification which they ordinarily possess - will think of the word and want to use it in connexion with similar goods in any manner which would infringe a registered trade mark granted in respect of it.[6]

   [6] [1964] HCA 55; (1964) 111 CLR 511 [514].

2. The above passage was approved by the majority in the High Court decision of Cantarella Bros v Modena Trading, (‘Cantarella’)[7] describing the assessment as follows:

   As shown by the authorities in this court, the consideration of the “ordinary signification” of any word or words (English or foreign) which constitute a trade mark is crucial, … Once the “ordinary signification” of a word ... is established an enquiry can then be made into whether other traders might legitimately need to use the word in respect of their goods.[8]

   [7] [2014] HCA 48; (2014) 254 CLR 337 (French CJ, Hayne, Crennan and Kiefel JJ).

   [8] Ibid [71].

3. In relation to the Trade Mark’s ordinary signification, the Applicant relies on its Macquarie Dictionary definition of ‘uncooked, as articles of food’[9] and ‘not having undergone processes of preparing, dressing, finishing, refining, or manufacture’. It notes that none of the Goods’ ingredients are raw, as in ‘entirely untreated in any way’ and have been through ‘multiple forms of treatment and processing’. In this context the Applicant submits that the Trade Mark is not a ‘direct reference to’ or ‘directly descriptive of’ the Goods but is ‘merely allusive.’

   [9] >

   The Macquarie Dictionary identifies ‘raw’ primarily as an adjective with 12 different meanings.[10] Thus the ordinary signification of the word to Australian consumers will vary according to context. I also observe that ‘raw’ is used in relation to food in a manner that it does not always mean unprocessed or uncooked. For example, consumers would understand that ‘raw’ sugar is a processed product. In this regard, in relation to the ordinary signification of a word, I note the comments of Kenny J in Sports Warehouse, Inc v Fry Consulting Pty Ltd that:

   One can place too much weight on dictionary definitions. Whilst they provide a guide to the meaning of a word, they may not set out its meaning exhaustively. Colloquial usage may provide further meanings to those set down in dictionaries.[11]

   [10] [2010] FCA 664 [86].

4. Furthermore, evidence of the way a word is actually used by traders can inform its ordinary signification to persons concerned with the Goods and inform the assessment of whether it is inherently adapted to distinguish.[12] 

   [12] F H Faulding & Co Ltd v Imperial Chemical Industries &c. Ltd [1965] HCA 72; (1965) 112 CLR 537, 555; Telstra Corporation Limited v Phone Directories Company Australia Pty Ltd (‘Yellow’) [2015] FCAFC 156 [119]-[127]; Cantarella [56].

5. At the hearing I observed that the examiner’s research indicates that the word ‘Raw’ is commonly used in marketing and promotion of vitamins and dietary supplements to indicate the products are natural and/or non-synthetic. It therefore would have an ordinary signification to ‘anyone ordinarily purchasing, consuming or trading in the relevant goods’[13], when applied to the Goods, that it is a product that has been made from natural as opposed to synthetic materials/ingredients. As the Applicant’s representative had not seen that research, I sent it to him and allowed time for further submissions in this regard.

   [13] Cantarella [28], [30], [70], [71].

6. The Applicant responded submitting that the examiner’s research does not establish that the ordinary signification of the word “raw” when used in relation to supplements in Australia is “nonsynthetic.” After examining the research the submission concludes

   The Research reveals that the word “raw” does not have any ordinary signification in relation to supplements in Australia. The examiner failed to locate a single piece of evidence indicating that the word “raw” has any ordinary signification in Australia. To the contrary, the Research reveals that even when the examiner expressly searched on Google for “what are “Raw” supplements”, the examiner was unable to generate any results explaining the meaning of “raw” supplements in Australia. This is compelling evidence that the word “raw” (and TM351) is inherently adapted to distinguish supplements in Australia.

7. The Applicant further contended that there was no evidence that anyone in Australia had seen or read those sites which referred to ‘raw’ vitamins or supplements.

8. Aside from several excerpts from the Applicant’s website, I note those search results showed use of the word ‘Raw’ in relation to vitamin and dietary supplements in another Australian website – ‘B raw – Supplement Warehouse.’ Other sites, presumably overseas, included and which showed product containers displaying the word RAW (stylised) on its labels for its nutrition products such as RAW Protein, RAW Vegan Protein, RAW Burn. In addition, in response to the examiner’s Google search ‘what are Raw supplements’, the following was retrieved: wholeearthsea.com ‘Raw whole food supplements’; rawpowders.com ‘Raw Sport Raw Supplements’; the article ‘Making sense of ‘raw’ versus synthetic vitamins’ from natureproscientific.com ‘Dietary supplement ingredients and raw materials’; ‘Raw Food Supplements Raw Nutrition Canada’; beautifulonraw.com ‘Do supplements prevent chronic disorders’; rawandnerdy.com ‘Food or Supplements’; ‘Female supplements’;  ‘Vitamin Code R is a cutting-edge line of Raw whole food supplements’; ‘Raw sport - Raw supplements’.

9. These results all suggest that ‘raw’ is commonly used by overseas (and two Australian) suppliers of vitamin and dietary supplements to describe products which have a natural or non-synthetic character. Furthermore, the Applicant, on its website amazonia.com.au, states its ‘[p]providing a sustainable, plant-based, organic, non-synthetic wholefood choice is the cornerstone of Amazonia's mission and ‘[p]providing nature’s nutrients the way nature intended for generations to come. No synthetic vitamins.’ In Norden 2 the deponent states ‘The Applicant’s use of the word ‘Raw’ is intended to convey to the consumer that the products sold under the Mark are non-synthetic and while the products sold have undergone a level of processing, this has been undertaken in a manner which has retained the nutrient profiles of the ingredients comprising each of the products sold.’ Consistently with examiner’s search results, these comments support a conclusion that the word ‘raw’ is used by the Applicant to convey an idea to consumers about the quality and nature of the goods to which it is attached. That is, it has come to indicate a ‘a secondary, colloquial, connotation’[14] to persons concerned with vitamins and dietary supplements as meaning non-synthetic and/or naturally sourced, thereby referring to a characteristic of the Goods.

   [14] Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd (No 2) [2021] FCA 328 [151].

10. While the Applicant relies on Mark Foy's Ltd v Davies Coop & Co Ltd (‘Tub Happy’) in maintaining that the Trade Mark is allusive, as Dixon CJ said in that case:

    The test must lie in the probability of ordinary persons understanding the words, in their application to the goods, as describing or indicating or calling to mind either their nature or some attribute they possess.[15]

    [15] [1956] HCA 41; (1956) 95 CLR 190,195.

11. Therefore, on ‘a practical evaluative judgement about the effects of the relevant mark in the real world^’[16] I am satisfied that ordinary persons concerned with the Goods[17] would understand ‘Raw’ when applied to the Goods as ‘describing, indicating or calling to mind’ the quality or character of the Goods. While Williams J found in Tub Happy that ‘any reference that the words ‘Tub Happy’ have to the character or quality of articles of clothing is very remote’,[18] the evidence in relation to the Trade Mark indicates a close, not remote, relationship between it and the character or quality of the Goods. For all the above reasons, I am satisfied that the Trade Mark has an ordinary signification to persons concerned with vitamins and dietary supplements as indicating they are naturally sourced and/or nonsynthetic.

    [16] Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273 [47] (French J).

    [17] Cantarella [28].

    [18] Tub Happy, 201.

12. Consequently, I must also consider whether there is a likelihood that other traders may legitimately want to use the same or a similar trade mark in a manner that may infringe the Trade Mark. Evidence as to the actual activities of other traders prior to the relevant date may be taken into account in assessing what hypothetical other traders are likely to do.[19] Furthermore, as Murphy J said in Phone Directories Company Australia Pty Ltd v Telstra Corporation Limited :

    At a minimum the evidence of use by overseas traders of the colour and word yellow in respect of directories is relevant because it goes to what hypothetical other traders in Australia are likely to do. In my view the contention that such evidence is irrelevant is quite unrealistic …[20]

    [19] Sports Warehouse, Inc v Fry Consulting Pty Ltd (‘Sports Warehouse’) [2010] FCA 664 [102].

    [20] [2014] FCA 373 [193], approved by Full Federal Court [2015] FCAFC 156 [145].

13. In any event, I am not satisfied that it is ‘inherently improbable’, as claimed by the Applicant, that Australian consumers of vitamins or supplements would have seen or reviewed the above sites. As noted above, the evidence shows that other traders both locally and overseas are already using ‘Raw’, albeit in different formats and with additional words and/or devices, to badge the same class 5 goods. As such, and as is further evidenced by the use of ‘Raw’ in other Australian trade marks for the same Goods[21], I am satisfied that other traders may legitimately want to use the word for the ordinary signification it possesses.

    [21] Above, n3.

14. I also note however that a sign may be descriptive or contain descriptive elements and still operate as ‘a badge of origin.’[22] It is clearly a matter of degree and taking this into account I am satisfied on the evidence that the Trade Mark might be regarded as to some extent, but not sufficiently, inherently adapted to distinguish the Goods from those of other persons (s 41(4)(a)). It follows that I must consider the ‘combined effect’ of the matters specified in s 41(4)(b), that is, the extent of inherent adaptation to distinguish, use or intended use of the mark and any other circumstances, in determining whether the goods will or will not distinguish the Goods from those of other persons.

    [22] Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd (‘Caplets’) [1991] FCA 310 [64], (1991) 30 FCR 326, 335 (Lockhart J); Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH [2001] FCA 1874 [23] (Hill J).

1. In this regard, the Applicant relied on the presumption of registrability as well as submitting in summary as follows:

• The Trade Mark is not a plain word mark but has a high degree of inherent adaptability to distinguish because it is rendered in ‘a highly unusual, a distinctive arrangement’ with highly unusual graphical elements involving an ‘unusual juxtaposition of different font sizes, styles and use of lower case and capital letters’ which are ‘arbitrary, aesthetic, design choices’ rendering the Trade Mark distinctive.

• There has been substantial use of the Trade Mark. ‘Raw’ is the dominant cognitive cue/essential element on all the Applicant’s Goods’ packaging and it is consistently rendered in an unusual and distinctive, stylized form in a white band which draws attention to it, the other text being subordinate. From a distance and in the retail environment the only legible word/obvious branding element is the Trade Mark. Relying on Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (‘Accor’)[23] the Applicant submitted that the sun logo which also appears on the products does not deprive the Trade Mark of its status as the dominant cognitive cue. 

• There have been substantial sales under and by reference to the Trade Mark, either as the primary or only trade mark, since 2017.

• The Applicant has undertaken significant marketing and promotional expenditure, including widespread publicity in magazines and television reports. Its Instagram and website pages, which has had several hundred thousand views, show use of the Trade Mark or use of it as the dominant cognitive cue.

  [23] [2017] FCAFC 56.

1. In relation to s 41(4)(b)(i), I do not consider that the Trade mark has ‘highly unusual graphical elements’ involving an ‘unusual juxtaposition of different font sizes, styles and use of lower case and capital letters’. It appears to simply reflect ordinary fonts Gulim (Raw) or Dotum (Raw) in bold format. As such, I consider that the extent of its capacity to distinguish the Goods is low. Unlike UB Natural Pty Ltd v Red Bull GmbH[24], as relied on by the Applicant, there is no additional element (such as colour) that contributes to a finding of inherent capacity to distinguish. The comments in Australian Meat Group Pty Ltd v JBS Australia Pty Ltd,[25] also relied on by the Applicant, are inapt as they were findings made in the context of an assessment of deceptive similarity and the different visual impressions created by the two complex composite trade marks, not of a single word mark for its inherent capacity to distinguish goods.

   [24] [2010] ATMO 106.

   [25] [2018] FCAFC 207.

2. In relation to use, the deponent in Norden 2 states that the Applicant did not commence using the Trade Mark without the sun logo until November 2019, only about 8 months prior to the relevant date. Nevertheless, the Applicant contends, the Trade Mark has since 2013 been the dominant cognitive cue on its packaging, all the other elements being subordinate to it. In this regard the Applicant relies on the finding in Accor[26] to contend that the additional elements that accompany the Trade Mark (in particular, the sun logo) on the Goods prior to November 2019, did not substantially affect its identity (s 7(1)) and did not deprive the Trade Mark of its status as the dominant cognitive cue. I note however that the sun logo[27] as it appeared on the Applicant’s packaging prior to November 2019 does not appear or function similarly to that of the stars or the diminished text accompanying the trade mark in Accor. It is/they are separately registered marks (Australian registered marks 1538834, 1750828) which the archived pages from the Applicant’s website amazonia.com.au., and its Instagram and Facebook pages, overwhelmingly demonstrate it as the dominant cognitive cue operating as the Applicant’s badge of origin on its packaging. While packaging can contain more than one trade mark,[28] when ‘Raw’ also appears on the Goods, it is presented in a wide white band in a colour specific to the individual product, with the container lid and writing underneath the white band also appearing in the same colour. Taken together with these other elements, this presentation imparts a degree of distinctiveness but without them I am not persuaded that ‘Raw’ solus does operate as an essential element or dominant cognitive cue such that it could be characterised as operating separately to distinguish the Goods. Relying on O’Bryan J’s comments in Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd (No 2),[29] the Applicant maintained that it does ‘not matter that the mark has also been used ‘in conjunction with a graphic’ or other words…’. I note however that finding was based on evidence of use of that trade mark ‘without any addition’ and evidence of extensive use ‘from before the 1980s’ and witness evidence that ‘the Corner Hotel has a very strong brand and reputation as one of the best and most well-known medium-to-large size live music venues in Australia.’[30] No similar evidence is available in respect of the Trade Mark.

   [26] [2017] FCAFC 56.

   [27] See paragraph 9 above.

   [28] Anheuser-Busch, Inc v Budějovický Budvar [2002] FCA 390 [191]; (2002) IPR 182, 228 (Allsop J).

   [29] [2021] FCA 328.

   [30] Ibid [156].

3. Furthermore, evidence of use of the Trade Mark without the sun logo, purportedly from 2019/2020, is largely undated and without context.[31] I note this use similarly shows the Trade Mark in the wide white band but with an additional word such as ‘Raw Protein’, ‘Raw Nutrients’, ‘Raw Beauty’ or ‘Raw Probiotics’, emphasising the Trade Mark’s descriptive nature. A specific product, such as ‘Greens’, ‘Collagen Glow ‘or ‘Slim & Tone’ appears underneath the band and in the same colour combination as in the earlier products. Furthermore, on accessing the available 2020 articles tabulated in Norden 1, the sun logo is still displayed and the products are referred to variously as ‘Amazonia Raw Protein’ ‘Amazonia’s Raw Vitamin C’ and similar. Therefore, while I accept that the Applicant has used the word ‘Raw’ in its packaging since around 2013, the evidence does not establish its use solus as a trade mark. As Lockhart J said in Caplets: "[m]erely to associate a word with the product of a particular producer does not mean that the association is necessarily one of origin.’[32]  In conclusion I am not satisfied that the Applicant has used ‘Raw’ solus as a trade mark to any significant extent for any significant duration.

   [31] Exhibit CN-4 of Norden 2.

   [32] Caplets [337]-[338].

4. I note the Applicant has provided substantial sales figures but they do not demonstrate under or by reference to which marks the sales were made. There is also significant marketing and promotional activity but again, as noted above, the Trade Mark generally appeared with the sun logo and I am not satisfied that it operated on its own as a badge of origin.[33]

   [33] Above n 27.

5. Given the Trade Mark’s limited capacity to distinguish, combined with a lack of evidence of use or intended use of the Trade Mark solus or any other circumstances indicating that the Trade Mark will distinguish the Goods, I am satisfied on the balance of probabilities that the Trade Mark does not and will not be capable of distinguishing the Goods from those of others (s 41(4)).

6. For the sake of completeness, and nothing my findings above regarding the limited use of the Trade Mark solus, the evidence does not establish that it has been used to such an extent that is does in fact distinguish the Goods as being those of the Applicant (s 41(3)(b)).

Decision

1. Section 33 of the Act relevantly provides:

   Application accepted or rejected

   (1)The Registrar must, after the examination, accept the application unless he or she is satisfied that:

   (a)    the application has not been made in accordance with this Act; or

   (b)    there are grounds under this Act for rejecting it.

   Note:        For this Act see section 6.

   (2)The Registrar may accept the application subject to conditions or limitations.

   Note:        For limitations see section 6.

   (3)If the Registrar is satisfied that:

   (a)   the application has not been made in accordance with this Act; or

   (b)  there are grounds under this Act for rejecting it;

   the Registrar must reject the application.

   Note:        For this Act see section 6.

   (4)The Registrar may not reject an application without giving the applicant an opportunity of being heard.

   Note:        For applicant see section 6.

2. For the above reasons, I am satisfied there are grounds for rejecting Trade Mark under s 41 of the Act. Accordingly, under s 33(3) of the Act, I reject trade mark application 2105351.

Mary-Ann Cooper

Hearing Officer

Trade Marks and Designs Group

29 September 2021