Trevor Rimmington, Julie Rimmington and Malcolm Anderson v Zen Do Kai Pty Ltd

[2002] ATMO 114

TRADE MARKS ACT 1995

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

Re:Opposition by Trevor Rimmington, Julie Rimmington and Malcolm Anderson to registration of trade mark application 851196(41) - ZEN DO KAI - filed in the name of Zen Do Kai Pty Ltd.

Date of Decision:	2 December 2002
Delegate:	Hearing Officer Geoff Purvis-Smith
Representation:	Opponent - Ms Gillian Dempsey instructed by Deacons Lawyers Applicant - Mr Arthur Tatlock of A Tatlock & Associates
Decision:	ss. 41 and 60 grounds unsuccessful Opposition dismissed Costs awarded to applicant

Background

On 22 September 2000, Zen Do Kai Pty Ltd of Montmorency in Victoria applied for registration of the following trade mark:

ZEN DO KAI

for the following services in class 41 - training in martial arts, education in martial arts.

During the course of examination, the Trade Marks Office (TMO) wrote to the applicant and advised it that the trade mark did not meet the requirements of s.41 of the Trade Marks Act 1995 (the Act) in that was not capable of distinguishing the applicant's goods from those of other traders in the market place. Specifically, the examiner believed that the trade mark was the name of a popular style of martial arts. As such, other traders would need to use the term ZEN DO KAI to describe the style of martial art that went by that name. The applicant was invited to provide evidence of its use of the trade mark to ascertain whether the provisions of s.41(6) could be applied. In reply, the applicant lodged a statutory declaration by Robert Victor Jones, the sole director and shareholder of the applicant company. Mr Jones' evidence was sufficient to satisfy the examiner that he was the inventor of the Zen Do Kai form of martial arts, was the originator of the applied for trade mark, had maintained control over the ZEN DO KAI style, and that use of the expression ZEN DO KAI was subject to Mr Jones' control.

This was sufficient for the examiner to accept the trade mark without a s.41(6) endorsement.

The acceptance was duly advertised in the Australian Official Journal of Trade Marks on 31 May 2001.

On 24 August 2001, the opponents, Trevor and Julie Rimmington and Malcolm Anderson filed their notice of opposition. The notice set out two grounds of opposition, relying on s.41 and 60 of the Act.

The matter eventually came on for hearing before me, as delegate of the Registrar of Trade Marks, on 4 September 2002.  The hearing was conducted in Canberra.  The applicant was represented by Mr Alfred Tatlock of A Tatlock & Associates.  The opponents were represented by Ms Gillian Dempsey of counsel, instructed by Ms Maureen Grant-Thomson of Deacons Lawyers.

Evidence

The following evidence was lodged and served by the parties:

Name	Date	Exhibits	Reference
Evidence in Support
Trevor RIMMINGTON	10.12.01	A-C	TR1
Julie RIMMINGTON	10.12.01	A-K	JR
Malcolm ANDERSON	18.12.01	Nil	MA1
Maureen Louise GRANT-THOMSON	20.12.01	A	MGT
Sophie Louise JOHNSON	20.12.01	A-E	SLJ
Douglas James LAVERS-McBAIN	18.10.01	Nil	DLM
Kenneth James FLEMING	23.06.01	Nil	KJM
Patrick Edward KIELY	04.07.01	Nil	KEF
Evidence in Answer
Steve NEDELKOS	22.03.02	SN1-SN7	SN
Richard NORTON	21.02.02	RN1-RN2	RN
Stephen Francis WALTERS	22.03.02	Nil	SFW
Robert Victor JONES	22.03.02	RVJ1-RVJ3	RVJ
Evidence in Reply
Malcolm ANDERSON	19.06.02	Nil	MA2
Trevor RIMMINGTON	25.06.02	Nil	TR2

Grounds of Opposition

As I have already mentioned, the opponents rely on ss.41 and 60 of the Act to oppose registration. I will deal with each ground in turn. However, it is useful to set out a number of my findings of fact at this stage. Where relevant to my final decision, each finding will be discussed in greater detail during the course of my decision, including the basis on which I have made the finding. My findings of fact, determined to my reasonable satisfaction on the balance of probabilities, are as follows:

• the applicant is entitled to bring the current application due to its relationship with Mr Bob Jones and the Bob Jones Corporation (the BJC);

• Mr Jones was the originator of the Australian Zen Do Kai style, and the Australian ZEN DO KAI name;

• the Zen Do Kai style which exists outside of Australia and New Zealand is a different style to that invented by Mr Jones;

• Mr Jones was the first user of the trade mark in Australia;

• Mr Richard Norton makes no claim to be the founder or co-founder of the Zen Do Kai style or name;

• Mr Jones or the BJC has attempted to exert control over the use of the expression Zen Do Kai and the ZEN DO KAI trade mark since its first use;

• ZEN DO KAI is, subject to s.41, capable of operating as a trade mark, notwithstanding that it is used in many instances in conjunction with "Bob Jones Corporation" and "Bob Jones Martial Arts";

• Mr Malcolm Anderson was a representative of Mr Jones and or the BJC in Queensland from the mid-1970s until some later stage, possibly late 2000;

• Mr Anderson was responsible not only for organising and managing Queensland schools, but also for protecting the name Zen Do Kai for the applicant's benefit and exploitation;

• Mr Anderson purchased Zen Do Kai supplies from the BJC, including Zen Do Kai identity cards, and forwarded commissions on membership fees to the BJC;

• The Rimmingtons were associated with the BJC until some time in 2001 - the association was as an "authorised" school which enjoyed the benefits of association (eg reputation, patronage of Mr Jones, BJC insurance, BJC curricula, and BJC Zen Do Kai supplies including certificates);

• The business name registrations taken out by the Rimmingtons were taken out after the application date, in March 2001, rather than August 2000 and January 2001 as alleged;

• there were approximately 130 "BJC authorised" Zen Do Kai schools ((Exhibit RVJ2) throughout Australia as at 6 March 2001; and

• the evidence does not establishes that there were a large number of "non-aligned" schools in Queensland which used the expression Zen Do Kai in its descriptive sense - in this paragraph, "non-aligned" means schools that are not owned or authorised by Bob Jones, the BJC, Malcolm Anderson or the Rimmingtons.

Section 41

Section 41 relevantly provides that 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 from the goods or services of other persons. In deciding the question whether or not a trade mark is capable of distinguishing the designated goods or services from the goods or services of other persons, I must first take into account the extent to which the trade mark is inherently adapted to distinguish the designated goods or services from the goods or services of other persons. If I am unable to find that the trade mark is inherently adapted to distinguish, ss.41(5) and (6) allow me to take into account other factors, including past and future intended use.[1] 

[1] Blount Inc v Registrar of Trade Marks 40 IPR 498, 503-505 per Branson J

The opponents' position is that the expression ZEN DO KAI is and was a generic, descriptive term in common use as at the date of application.  As such, it does not possess the requisite inherent capacity to distinguish the services of the applicant from those of other traders.  In support of its argument, the opponents expressly rely on four different pieces of publicly available evidence, namely:

1. Exhibits SLJ-A and SLJ-B, which are print-outs of the Australian White and Yellow Pages online telephone directories and which show that there are 21 business name listings for the expression ZEN DO KAI; and

2. Exhibits SLJ-C and SLJ-D, which are print-outs from the Australian Securities and Investments Commission (ASIC) and Queensland Business Names Register internet sites and which show that there are 20 business names which include the expression ZEN DO KAI.

The telephone directory searches were apparently conducted on 20 November 2001 (each carries a date of 19 November 2001 in the bottom right hand corner, but Ms Johnson states that the searches were carried out on the 20^th).  Given the length of time between the date of application and the search dates, they do not assist me greatly in determining whether the expression was in common use as at the application date.   In relation to post-application date use, there is no indication in the declaration of Ms Johnson that she or any other person on behalf of the opponents took any steps to ascertain whether the businesses referred to in the Exhibits were in any way associated with the applicant.  Some of the names have a clear connection with the applicant or opponents (in that they use "Bob Jones" or "BJC"), however, the vast majority do not. A number of them are duplicate entries in different categories.  Therefore, on their face, the records are of little assistance in showing that the expression had become common to the trade or had become a generic descriptor.  It may be that many of the businesses are in fact aligned or associated with the applicant.  It is the opponent that bears the burden of proof in this regard.

The ASIC search, which was again conducted on 20 November 2001, gives no indication of how long the various entities have held their registrations.  It may be that the various entities had sought registration after the application date.  Finally, three out of four of the Queensland Business Name registrations were applied for after 22 September 2000.  The fourth registration, which does pre-date the application,  belongs to the BJC.

This evidence leaves me in the position of not knowing whether any of the names are associated with the applicant, how widely ZEN DO KAI has been used in Australia by entities unrelated to the applicant, or over what period such unrelated use has taken place.  These are all relevant factors in determining whether the applied for trade mark is a descriptive and/or generic expression. 

Further, what evidence there is does not satisfy me that the words ZEN DO KAI have become a generic descriptive term as alleged.  Putting the opponents' evidence at its highest, the term may have been used as a descriptive expression over a very short period of time and/or in a very limited number of schools in Queensland in a manner which would amount to a usurpation of the applicant's trade mark.  Such use, whether innocent or otherwise is insufficient, in the present matter, to make out a case that the expression has become a generic descriptive expression. 

I am not satisfied that the tests set down in the authorities starting with Clark Equipment Co v Registrar of Trade Marks (1964) 111 CLR 511 at 513 and ending with Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH [2001] FCA 1874 are satisfied in the present case in the opponents' favour. Those cases confirm the need to show that other traders, who act without improper motive, would legitimately need or desire to use an expression to describe their services. For the reasons I have set out below, there is nothing before me which satisfies me that the opponents' have come to their desire to use the expression in good faith. Nor do I believe that the limited evidence of descriptive use by third parties demonstrates that the trade mark has become generically descriptive as the opponents allege or that it has been used in good faith.

Through their declarations, the Rimmingtons deny that they have any business relationship or association with the applicant.  However, I am satisfied that they did have one until some time in late 2001.  Up until that time, they used the expression ZEN DO KAI and their relationship with Mr Jones or the BJC to their own advantage.  See for instance, Paragraph 7 of TR2, the order forms in SN2 and the newsletters and other material in SN5. The newsletters and other material in particular recognise Mr Jones as the founder of the Zen Do Kai style and Kyoshi Sama of their school (see the newsletter of 8 August 2000). See also Ms Rimmington's own evidence in TR-C - the "Security is Peace of Mind" articles where the contact details include "Bob Jones 'Zen Do Kai' Martial Arts" and name Mr and Mrs Rimmington as the chief instructors.  Their "descriptive" use has only come about in the last two years.  Before that, the expression was often used literally or impliedly in conjunction with the name of Mr Jones or the BJC.  Accordingly, this was not generic descriptive use.  The subsequent use has not been in good faith.

In relation to Mr Anderson, he states at paragraph 4(3) of MA2:

"Paragraph 11 of the Statutory Declaration of Steven Nedelkos states that in 1974 I was sent to (sic) from Victoria to Queensland by Bob Jones to manage Zen Do Kai clubs in Queensland on behalf of Bob Jones.  This statement is false and misleading.  I have 120 Zen Do Kai suburban schools which I have run for the last 25 years on my own behalf.  I open and close approximately 15 schools each year.  Bob Jones would have no knowledge of which of my clubs are being opened and closed.  Bob Jones has never visited any of these clubs.  None of these clubs are operated on behalf of Bob Jones or Bob Jones Corporation."

At first glance, this gives the impression that Mr Anderson was not sent to Queensland by Mr Jones, and that the expression "Zen Do Kai" is used widely.  That is, it is used in at least 120 schools in Queensland alone. 

However, for the reasons set out below, I am satisfied that Mr Anderson was sent to Queensland as a representative of Mr Jones' organisation.  He may not have managed clubs belonging to Mr Jones or the BJC, but he was sent to oversee the Queensland operations, including schools which formed part of the BJC association, but which were not owned by the BJC. His own club or clubs appeared to be part of this association.  As a result, I am satisfied that Mr Anderson was an integral part of the applicant's organisation, and that he had a responsibility to protect the interests of that organisation.  

Further, I am not satisfied that the use was as widespread as paragraph 4(3) would suggest.  Again, I will deal with this further, below.

Exhibit SN-3  comprises extracts from the BJC Cash Receipts Journal (Commissions) for the period 1995 to 2002.  Mr Nedelkos alleges, and Mr Anderson does not deny, that the extracts show that Mr Anderson paid the following amounts by way of commission during the relevant period: 

24/10/95         $2,000

24/1/96           $3,500

1/7/96             $5,000

7/2/97             $4,000

17/6/97           $4,000

Commissions were, on the uncontested evidence of Mr Nedelkos, paid on the basis of 10% of profits, 10% of grading fees or 10% of student membership fees.  The amounts involved appear to indicate a large turnover for schools associated with the BJC.  I accept that the commissions may not relate to Zen Do Kai students specifically, but it appears to be the nature of the schools to offer training in various BJC authorised styles. Why Mr Anderson would pay these commissions if he was not in some way associated with the BJC is not clear. 

Exhibit SN-2 includes a number of orders placed by Mr Anderson or his wife for BJC merchandise in the 1990s.  The orders include Zen Do Kai identity cards and grading certificates.  Again, this indicates at least some association with the BJC, and with BJC Zen Do Kai in particular.

Exhibit TR1-A is the "Bob Jones Corporation Journal 1990".  The journal includes an interview with Mr Anderson, part of which is extracted below:

I had come here to interview Malcolm Anderson, a Kyoshi, sixth degree black belt and ranked number one in Zen Do Kai Freestyle - the heir to the founder of the style Bob Jones.

...

Q. How did you find the standard and the attitudes on your arrival in Queensland as compared to what you had experienced in Melbourne?

A. The same, but on a smaller scale.  When I first came to Queensland in 1975, we had only one school in Adelaide Street.  Since then, as a result of hard training and hard work, I expanded the style to over 120 clubs throughout Queensland.  I could not have done it alone.  Initially there was a lot of resistance in Brisbane against Bob Jones.

...

Q. How has your relationship with Bob Jones developed over the years?

A. The higher rank I become, the more I respect him...I'd like to publicly thank him for being my mentor, and for having the power and the discipline to keep Zen Do Kai, with all its different personalities progressing.

Finally, in relation to the extent to which Mr Anderson may have used ZEN DO KAI as a descriptive expression, I note the following.  In his first declaration, dated 18 December 2001, Mr Anderson states that his school (singular) is known as "Queensland Zen Do Kai".  In his second declaration, dated 19 June 2002, Mr Anderson states that he has 120 schools. There is no explanation of how the number of schools jumped from one to 120 in the six months between the two declarations.  In any event, and in the absence of documentary evidence, I am not satisfied that Mr Anderson has 120 schools - he may run 120 classes per week in various suburban locations, but I believe it more probable than not that these all fall under the purview of a single school.  Therefore, they are not of any great assistance to the opponent in making out its case that the expression has fallen into widespread use as a generic descriptive expression.

In any event, the evidence satisfies me that Mr Anderson had a relationship or association with the applicant and/or Mr Jones or the BJC.  I am satisfied that the relationship involved not only use of the applied for trade mark, but that the use was with the consent and under the attempted, legitimate control of the applicant.  I use "legitimate" in the sense that the applicant had a reasonable basis for presuming that Mr Anderson would work with rather than against the applicant or its related entities.

In relation to the evidence by Messrs. Lavers-McBain, Kiely, Fleming, E Howlett, M Howlett, Stanley and Hauff, I note the following.  Each declarant is a member of what could be called the Queensland marital arts community.  Each attests to their understanding that the expression ZEN DO KAI was freely available to use as a descriptive expression.  However, their evidence does not persuade me that the expression has become the generic descriptive term that the opponents allege.  In the first instance, the Messrs. Howlett (x 2), Stanley and Hauff all appear to come from the same school in Rockhampton.  Mr Lavers-McBain appears to have one school, which conducts classes in a limited South East Queensland region.   Mr Fleming appears to be an instructor who works with or for Mr Anderson.  Mr Kiely's current status is unstated.  It does not appear that he owns any schools.  Rather, he appears to be a teacher.  I do not know whether he teaches in any of the opponents' schools.  What Mr Kiely does state however is that, during his tenure as Secretary of Zen Do Kai Queensland and manager of the Brisbane Headquarters, all his dealings were with the BJC.  Again, this indicates a significant association with Mr Jones.  On the other hand, Mr Kiely states that, in his opinion, Zen Do Kai Karate was a style which was publicly available.  He does not provide an opinion on whether the name was publicly available.

This evidence, taken as a whole, does not convince me that the expression ZEN DO KAI is in widespread use as a generic, descriptive term or that other traders would wish to use it in good faith.  The mere fact that a person or entity may use a trade mark in a generic, descriptive manner, whether inadvertent or otherwise, does not mean that it has become publico juris or that it is automatically transformed from private property to a publicly available expression.  In particular, I do not believe that persons who had a mutually beneficial association or relationship with a trade mark owner are entitled to apply the trade mark for their own exclusive benefit and then, without more, argue that the expression has become generic or descriptive.  Something more is needed.  It may be widespread use (in any event, wider than a few schools in a particular jurisdiction) or use over an extended period of time.  Here, I am not satisfied that there are more than a handful of schools which operate in limited geographic areas within a single State, that have used the expression in a "descriptive" sense.  Whether they have done so in complete good faith, I cannot tell.  In any event, when compared with the number and geographic spread of Zen Do Kai schools run by the applicant or the BJC I do not believe that the limited use has caused the expression to become generic or descriptive to the degree alleged by the opponents.  Further, I am not satisfied that Mr Anderson or the Rimmingtons used the expression in a descriptive sense for the majority of their association with the applicant or the BJC.

In relation to the ownership of the expression "Zen Do Kai" as a trade mark, I am satisfied, on the basis of the evidence contained in the declarations of Messrs. Nedelkos, Walters, Norton and Jones, including the newsletters produced by the Rimmingtons, that Mr Jones is the true owner of the trade mark. 

I do not consider that ZEN DO KAI is incapable of being a trade mark, or indicator of source, simply because it has been used on many occasions in connection with the words "Bob Jones Corporation" or "Bob Jones Martial Arts".  For the reasons I have already provided, I am not satisfied that consumers when presented with the expression "Zen Do Kai" will consider it as a descriptive term.  Rather, it has been and continues to be used as a trade mark which identifies the originator of the style and its controlling body.  The expression is not, apparently, in use in Australia to describe anything other than the relevant martial arts style, and when it is used in that manner, it is used proprietorially (see Exhibit SLJ-E).  I am satisfied therefore that the trade mark has the requisite inherent capacity to distinguish. 

I find that the opponent has failed to make out this ground.  The trade mark ZEN DO KAI is inherently adapted to distinguish the applicant's services and is capable of distinguishing the applicant's services from those of other traders.

Section 60

The opponents pursue this ground in the alternative. 

Section 60 provides:

Trade mark similar to trade mark that has acquired  a reputation in Australia

60. The registration of a trade mark in respect of particular goods or services may be opposed on the ground that:

(a) it is substantially identical with, or deceptively similar to, a trade mark that, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, had acquired a reputation in Australia; and

(b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

Note 1:  For deceptively similar see section 10.

Note 2:  For priority date see section 12.

The opponents argue that if Zen Do Kai is found to be inherently capable of distinguishing the applicant's services from other providers, then:

1. the applied for trade mark is substantially identical with, or deceptively similar to the trade marks of the opponents;

2. the opponents' trade marks had acquired the requisite reputation in Australia prior to the application date; and

3. as a result of that reputation, use of the applied for trade mark by the applicant would be likely to deceive or cause confusion.

The opponents allege that:

• the Rimmingtons obtained registration of the business names "Gympie Zen Do Kai Karate Club" in 1983, "Zen Do Kai Black Belt Academies" in August 2000 and "Qld Zen Do Kai-Muay Thai" in January 2001; and

• the Rimmingtons have used the mark "Zen Do Kai" in various forms of promotional material including radio and television advertisements, yellow pages advertisements, newspaper reports, highway-adjacent signage, certificates provided to students for grading purposes and regular circulation of newsletters, business cards and bumper stickers for the last 20 years

with the result that a reputation has been garnered in trade marks which are in the hands of the opponents.

Taking each item in turn:

Business name registrations
Irrespective of when the registrations were taken out, they are not evidence of reputation.  Reputation entails community awareness, rather than registration of a particular business name which may never be promoted to the public.

Radio advertising
The receipt for the advertising is Exhibit JR-B.  The receipt was issued by Gympie Noosa Broadcasters Pty Ltd for an amount of eight dollars, is dated 9 April 1984 and relates to "Community Events" advertising for "Zen Do Kai Karate".  There is no indication of how many times the ad would be run, however, the cost of eight dollars suggests very little airtime.  I do not believe that it is likely that a lasting reputation was garnered as a result of this advertising.

Television advertising
There is no documentary evidence to show the nature or duration of the alleged advertising in 1994.  Again, I am not satisfied that the advertising was extensive, or was likely to have garnered the requisite reputation.

Yellow Pages advertisements
Again, there is no documentary evidence to establish how the advertisements appeared in the Yellow Pages.  Specifically, there is no evidence of what, if any, trade marks were used in the advertisements or how they were used. I have no way of telling whether the advertisements were mere listings, larger ads, or included any mention of the BJC.  The current on-line listings do not appear to use the expression "Zen Do Kai", but rather, "Rimmington Black Belt Academies" and "Rimmington Martial Arts and Fitness Studios".  In any event, I am not satisfied that the mere mention of a trade mark in the Yellow Pages over a number of years is sufficient to garner the requisite reputation.

Newspaper articles
Ms Rimmington annexes 17 newspaper articles to her declaration as Exhibit TR-C.  Only a few of the articles are dated, and most of these fall within the 1993-1995 period.  One article appears to be from 1998.  The articles all refer to the martial arts style "Zen Do Kai" and refer to Mr and Mrs Rimmington as instructors or operators of schools and the like.  However, this is not evidence of reputation in the trade mark ZEN DO KAI in the hands of the opponents.  Rather, it goes to establishing their reputation as instructors in ZEN DO KAI, which in itself is the trade mark of the applicant.  To use a different example, a shopkeeper who has a reputation for selling a particular brand of product cannot assert a reputation for the product, he or she can only assert a reputation as a seller of that product. 

Signs
Each of the signs uses the words "Zen Do Kai Black Belt Academies" and "Karate l Muay Thai l Jiu Jitsu l Kidz Karate", and the same contact telephone number.  One sign appears to have been in place since approximately 1996. The second, which also includes the words "Preschoolers" and "Trevor & Julie Rimmington", has only been in place since mid-2001. 

Looking only at the sign that was in place as at the application date (as this is the only sign that could have given rise to a reputation at the relevant date), I am not satisfied that it assists the opponents in asserting a reputation in their hands.  For the majority of the time that the relevant sign has been in place, the Rimmingtons were associated with the applicant.  My comments relating to the newspaper articles and where the relevant reputation lies, apply here as well.  The reputation garnered by the sign is that "Zen Do Kai Black Belt Academies" are instructors in ZEN DO KAI, which is the trade mark of the applicant.

Certificates
I am satisfied on the evidence that the Rimmingtons used BJC certificates for a significant period of time.  However, the only certificates which the opponents produce in evidence are dated June and November 2001.  There are no certificates produced which reflect the position during the association with the BJC or which are before the application date.  Therefore, the certificates are of no assistance in determining reputation as at the priority date. 

Newsletters, business cards and bumper stickers
For similar reasons to those mentioned in relation to the newspaper articles and the signage, I am not satisfied that the Rimmingtons had garnered the requisite reputation as at the application date.  This is reinforced when the contents of the newsletters in the pre-application date period, and which are included in Exhibit SN5, are taken into account.  There are numerous references to the Rimmingtons' association with the BJC, and Mr Jones is acknowledged as the founder and leader of the Zen Do Kai style.  Therefore, the reputation of the Rimmingtons' is as instructors in the style, rather than in the trade mark in itself.

As I am not satisfied that there is any other trade mark that has the requisite reputation, the elements of s.60 cannot be made out, and the ground of opposition must fail.

Summary and Costs

I have found that the opponents are unsuccessful on both grounds.

Subject to the payment of any outstanding fees, I direct that the application may proceed to registration after the expiry of six weeks from the date of this decision.  If an appeal is lodged and served within that time, I direct that registration shall not occur until the appeal has been decided or discontinued.

In relation to costs, the usual course is to award costs to the successful party. I  see no reason to take a different approach in the present case.  I direct that the opponents pay the applicants costs in accordance with Schedule 8 of the Trade Mark Regulations 1995. 

Geoff Purvis-Smith
Hearing Officer
Trade Marks Hearings
02 December 2002