TWC Holdings Pty Ltd v Graham Walters & Associates

[2004] ATMO 21

TRADE MARKS ACT 1995

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

Re:Opposition by TWC Holdings Pty Ltd to registration of trade mark application 881976(25) - MERINOMARK - filed in the name of Graham Walters & Associates.

Delegate:

Mary Skivington

Representation:

Opponent: Edward Heerey of Counsel, instructed by Andrew Butler of Allens Arthur Robinson, Patent and Trade Mark Attorneys.

Applicant:Ben Fitzpatrick, of Counsel, instructed by Graham Walters & Associates.

Decision:

Section 52 opposition - grounds under sections 42, 44 and 60 not established - opposition unsuccessful - registration allowed - costs awarded against the opponent.

Background

1.     Graham Walters & Associates Pty Ltd, ('the applicant'), filed trade mark application number 881976 to register the trade mark, MERINOMARK, on 10 July 2001. Following examination of the trade mark the goods specified in the application were amended to the following:

Clothing, footwear and headgear including knitted clothing, footwear and

headgear.

2.     Acceptance for registration of the application, as amended, was advertised in the Australian Official Journal of Trade Marks on 8 November 2001.

3.     TWC Holdings Pty Ltd, ('the opponent'), filed a notice of opposition to registration of the trade mark on 8 February 2002, citing a broad range of grounds of opposition under the provisions of the Trade Marks Act 1995, ('the Act'). The ground of opposition under section 44 of the Act cited two trade mark registrations, number 758504 for the plain word trade mark, WOOLMARK, which is registered for goods in thirteen classes including Clothing footwear and headgear in class 25 and number 765983 for a series of trade marks, as shown below, which are identical in all respects except colour. This registration is in respect of the same sort of goods in class 25.

 

4.     Following the allowance of several extensions of time the opponent completed the filing and serving of its evidence in support on 4 March 2003. The applicant's evidence in answer was filed and served within the three months allowed by statute, on 4 June 2003. The evidentiary phases of the opposition process were completed with the filing and serving of the evidence in reply on 4 December 2003.

1. Both parties applied to be heard and, as a delegate of the Registrar of Trade Marks, I heard the matter in Melbourne, on 16 February 2004. The opponent was represented by Mr Edward Heerey of Counsel, instructed by Mr Andrew Butler of Allens Arthur Robinson, Patent and Trade Mark Attorneys. Mr Ben Fitzpatrick of Counsel represented the applicant.

   The Evidence

   6.     Statutory Declarations in support

Date	Declarant	Exhibits
8 November 2002	Peter J McKeown, General Counsel and Company Secretary of the applicant.	PM-1 to PM-17
5 December 2002	Sandra Elizabeth Forman, Trade Mark Attorney of Allens Arthur Robinson, Patent and Trade Mark Attorneys.	SEF-1 to SEF-6
7 January 2003	Pauline Simpson, National Operations Manager of Purely Australian Clothing Company Pty Ltd.	None
24 January 2003	Leah Paff, Manager of the Woolmark licensing program for Australasia for the applicant.	None

7.     Statutory Declarations in answer

Date	Declarant	Exhibits
30 May 2003	Graham R Walters, Managing Director of the applicant.	GW-1 to GW-19
30 May 2003	Adrian Bressan, Managing Director of A & B Knitwear Pty Ltd.	None
2 June 2003	Pat Alifraco,National Marketing Manager of Charles Parsons Pty Ltd.	None
30 May 2003	Clare McShane, Managing Director of Casaveen Knitwear.	None
29 May 2003	Neil Couper, Director of Calcoup Inc Pty Ltd T/A Calcoup Knitwear.	None
28 May 2003	John McGrath, Chairman of Woolconnect Inc.	None

8.     Statutory Declaration in reply

Date	Declarant	Exhibits
4December 2003	Peter J McKeown, General Counsel and Company Secretary of the applicant.	PJM-A

Evidence in support

9.     

Mr McKeown's statutory declaration, dated 8 November 2002, provides a history of the various corporate entities that form the Woolmark Organisation and the trade marks they have used since the first use in Australia of the Woolmark logo, in 1965.

10.   The priority date for the trade mark, WOOLMARK, the subject of registration number 758504 is 27 March 1998. Mr McKeown declares that the Woolmark Organisation is engaged in technical innovation, technical consultation research and development, business information, commercial testing of wool fabrics and the promotion of quality assurance in respect of wool products. The Woolmark Organisation, declares Mr McKeown, licenses the use of its trade marks to others, not only in Australia and but also in more than sixty other countries, in respect of the manufacture, promotion and sale of pure new wool and blended wool products. He declares that licensees in Australia include Target, David Jones, Country Road, Geoffrey Hirst and Pacific Dunlop.

11.   Exhibit PM-8 is a paper presented to the board of the opponent in October 2001 entitled 'Woolmark Visibility Audit 1999-2001'. According to this paper the Woolmark logo enjoys a very high level of 'consumer visibility'.

12.   Exhibit PM-4 shows that the opponent uses trade marks combining the logo and word WOOLMARK with various descriptions such as 'Pure new wool', 'Merino Extrafine' and 'Pure Merino Wool'.

13.   Mr McKeown declares that advertising and promotion in respect of the trade marks appears in the print media, on television and the Internet and in displays at shopping centres and airports. It is clear from the materials provided as exhibits that expressions such as 'Australian Merino Wool' and 'Pure Merino Wool' are commonly used in association with the Woolmark logo and the word Woolmark.

14.   Exhibit PM-7 comprises tables showing the numbers of 'sew on' labels and tags used for each of the years 1999 to 2001, of the Woolmark, 'Pure Merino Wool', and 'Merino Extrafinewool' labels, in Australia as well as globally. I regard these numbers as substantial.

15.   Mr McKeown reports that the Woolmark Organisation was the official supplier of formal uniforms for the Sydney 2000 Australian Summer Olympics Team and the 2002 Australian Winter Olympic Team. The opponent's 'Merino to Go' concept store was opened at the Sydney International Airport on 3 July 2000. This store only sells wool products authorised or endorsed by the Woolmark Organisation.

16.   Ms Forman's statutory declaration includes various dictionary definitions for the word 'Merino' and extracts from the Australian Wool Statistics Yearbooks for each of the years 1997 to 2002. The dictionary definitions confirm, what is common knowledge, in Australia at least, that the Merino is a variety of sheep valued for its fine wool which is known as Merino wool.  The Yearbooks confirm what I also suspect is common knowledge and that is, that almost all of the wool produced in Australia is grown on Merino sheep.

17.   Ms Simpson declares in her statutory declaration dated 7 January 2003, that for approximately two years the Purely Australian Clothing Company Pty Ltd, in a joint venture with the Woolmark Company, has retailed wool products under license from The Woolmark Company, through the 'Purely Australian' and 'Merino to Go' stores at Sydney's International Airport. She declares that she handles the selection and purchase of licensed wool products to be sold at 'Purely Australian' outlets and at the 'Merino to Go' store and that the products are sourced from licensees of the Woolmark trade marks. Ms Simpson declares that on occasions licensees have supplied goods bearing both a Woolmark trade mark and the applicant's Merinomark trade mark. On the first occasion that this occurred, Ms Simpson declares, that she assumed that the MERINOMARK trade mark was a new brand adopted by the Woolmark Company. However, she was not certain and sought clarification from Ms Paff who advised her that this was not correct.

18.   Ms Paff declares that one of her roles is to negotiate and execute annually renewable Woolmark licence agreements with Australian wool processors, manufacturers of wool products and retailers of wool garments. She reports that in the renewal period which expired in May 2002, she was informed that the applicant had approached a number of companies with a view to signing licence agreements with the applicant. Ms Paff declares that some of these companies have since terminated their agreements with The Woolmark Company. Additionally, Ms Paff declares, as a result of the conduct of the applicant a number of woolen products now carry swing tags which bear both the WOOMARK and MERINOMARK trade marks.

Evidence in answer

19.   Mr Walters, in his statutory declaration, dated 30 May 2003, declares that between 1978 and 2001 he was employed by the Australian Wool Corporation and its successor organisations and that he was closely involved with licensing, registration and quality control in respect of trade marks owned by the opponent. Mr Walters declares that when he left the Australian Wool Corporation to establish a textile testing laboratory at Deakin University he was approached by several companies including A & B Knitwear Pty Ltd, Fields Knitwear Pty Ltd and Casaveen Knitwear, to assist in the establishment of a new wool licence scheme to promote apparel products made from Australian Merino Wool. Mr Walters declares that in response to this request the MERINOMARK trade mark was coined. Mr Walters compares the MERINOMARK and WOOLMARK schemes and the essential difference appears to be that MERINOMARK is restricted to use in respect of Australian merino wool and use of the WOOLMARK is not so restricted. Exhibits to Mr Walters' declaration show that the MERINOMARK has been promoted in trade magazines and through the rural press.

20.   The Bressan, Alifraco, McShane, Couper and McGrath statutory declarations are all trade declarations from people involved in the wool growing, textile or apparel industries. Mr Bressan confirms that A & B Knitwear Pty Ltd was instrumental in establishing the MERINOMARK licensing scheme and, that by reason of a need for specificity in labelling, holds both WOOLMARK and MERINOMARK licences. The date of first use of the MERINOMARK has not been declared but there is no evidence demonstrating use before the priority date of 10 July 2001.

Evidence in reply

21.   Mr McKeown in his evidence in reply notes that Mr Walters was employed by the Woolmark Organisation for nearly twenty-three years and in the latter part of that time was employed as the Trade Marks Manager. Mr McKeown declares his concern that Mr Walters in the full knowledge of the opponent's trade marks should have chosen a trade mark which, he asserts, is not readily distinguishable from Woolmark's brands. Mr McKeown acknowledges that the Woolmark trade mark was created as an International logo to identify wool of any origin but, he declares, 'this does not preclude a close association of the Woolmark trade mark with Merino wool through the creation of special programmes which feature the word "Merino", namely Pure Merino Wool, Merino Extrafine and Australian Merino 2000,' all of which predate the priority date of MERINOMARK.

Grounds of opposition.

22.   At the hearing Mr Heerey relied on grounds of opposition under the provisions of sections 42, 44 and 60 of the Act. The remaining grounds of opposition raised in the notice of opposition were not pressed and I now find that they have not been established.

Submissions and the law

23.   Subsection 44(1) provides that a trade mark application must be rejected if the applied for trade mark is substantially identical with or deceptively similar to a trade mark which has an earlier priority date, and which is in respect of similar goods or closely related services.

24.   Section 10 of the Act states that a deceptively similar trade mark is one that so nearly resembles another trade mark that it is likely to deceive or cause confusion.

25.   It was not in dispute that the trade mark registrations on which the opponent relied have earlier priority dates than that of the subject application or that the goods are similar. Thus, in terms of subsection 44(1), the only matter to decide is whether the trade marks are substantially identical or deceptively similar.

26.   Mr Heerey submitted that this case was comparable with PB Foods v Malanda Dairy foods Ltd (1999) 47 IPR 47, where Carr J found that the trade marks CHILL and CHOC CHILL were substantially identical because prospective purchasers would recognise the word CHILL as the badge of origin and the word CHOC as nothing more than the flavour of the goods. Mr Heerey then said that while not conceding that the respective trade marks are not substantially identical, in this case it would be difficult to conceive of a conclusion whereby the trade marks under consideration would be held to be substantially identical but not deceptively similar, and on that basis it was strictly superfluous to consider substantial identity any further.

27.   I do not consider that WOOLMARK and MERINOMARK are substantially identical. In respect of substantial identity, Gummow J, in Carnival Cruise Lines Inc. v Sitmar Cruises Limited, (1994) AIPC 91-049, said,

It requires a total impression of similarity to emerge from a comparison between the two marks. 

28.   The visual and phonetic differences in these trade marks are so obvious there is clearly no 'total impression of similarity'. Unlike the two word trade mark, CHOC CHILL, WOOLMARK and MERINOMARK are both composite words, each formed by the conjoining of two English words in common use.  It is the composite word as a whole and not its component parts, that constitutes the 'badge of origin'. Furthermore the word MARK does not fall into the same category of word as does the word CHILL which had some inherent adaptation to distinguish in relation to the goods which were flavoured milk. The word MARK used in relation to a trade mark, obviously lacks inherent adaptation to distinguish.  Clearly, the logic of the approach adopted in the CHOC CHILL case will not transfer to the trade marks under consideration here.

29.   Mr Heerey argued that MERINOMARK and WOOLMARK are deceptively similar and in support of this claim drew my attention to the well known principles established in Australian Woolen Mills Ltd v F S Walton & Co Ltd, (1937) 58 CLR 641 and Shell Co of Australia v Esso Standard Oil, (1961) 109 CLR 407. Mr Heerey noted that in Registrar of Trade Marks v Woolworths, 45 IPR 411, Justice French said that in considering if 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.

30.   Mr Heerey argued that consideration must be given to the principle of making allowance for the 'imperfect recollection' of consumers, noting that in Aristoc Ltd v Rysta Ltd, (1943) 60 RPC 87 at 108, Luxmore LJ said,

..little assistance, therefore, is to be obtained from a meticulous comparison of the two words letter by letter and syllable by syllable .....

31.   Mr Heerey said it is important to consider the 'idea' of the mark and in that respect referred to the definitions provided in the Forman statutory declaration for the word Merino. He said that given these definitions it is clear that MERINOMARK applied to clothing identifies the woolen components of such goods as originating from the owner of the WOOLMARK or its licensees and subject to the quality control exercised by the opponent. I think that even given the definition of Merino this is altogether too much to deduce from the trade mark MERINOMARK. I think it is entirely reasonable to expect that woolen goods carrying the MERINOMARK trade mark would be made from Merino wool. Indeed if it were otherwise the trade mark would be misdescriptive. However, no one could seriously expect that all goods made from Merino wool originate from the owner of the WOOLMARK or its licensees.

32.   In the context of the imperfect recollection of ordinary consumers and the similar ideas suggested by WOOLMARK and MERINOMARK, Mr Heerey submitted that it is likely that a significant number of persons will entertain a reasonable doubt, that all such goods are licensed by the opponent. This is even more likely, said Mr Heerey, when the comparison is between MERINOMARK and WOOLMARK PURE MERINO WOOL. The words PURE MERINO WOOL are wholly descriptive and would be seen as such by consumers. Any trader who produces garments from pure Merino wool is entitled to so describe his/her products. I think there is no likelihood that consumers on seeing this description in the opponent's marks, would some how be confused or deceived into a belief that one trade mark might be the other.

33.   In support of the likelihood of confusion Mr Heerey also referred to the instance of confusion detailed in Ms Simpson's statutory declaration. I will address this issue later in my reasons.

34.   Mr Fitzpatrick submitted that in assessing the matter of deceptive similarity the tests were set down in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd, supra, and noted that per Registrar of Trade Marks v Woolworths Ltd, supra, the 'probability of deception and confusion must be finite and non-trivial'. He noted that the first portion of a word is by far the most important for the purposes of distinguishing trade marks: London Lubricants (1920) Ltd's Appn, (1925) 42 RPC 264. Mr Fitzpatrick also argued that the assessment involves a consideration of, the descriptive qualities of the words that comprise the trade marks and the legitimate rights of other traders to adopt such words. He noted Burchett J stated, in Conde Nast Publications Pty Ltd v Virginia Taylor, [1998] 864 FCA, where the trade marks under consideration were VOGUE and EUROVOGUE,

At the same time, it should be borne in mind that "vogue" is neither a made-up word nor a word wholly without any direct application, in the ordinary use of language, to the goods in question. A trader is not entitled to monopolize such a word, denying its use entirely to other traders. Deceptive or confusing use is barred by the applicant's registration, but the Court should be careful not to shut out inappropriately other traders from the fair use of the language in ways that will not in reality deceive or confuse.

35.   Mr Fitzpatrick submitted that in determining whether or not marks are deceptively similar to each other it is important to consider the nature of the goods, the circumstances of their sale and the nature of the consumers: Pianotist Co.'s Appn, (1906) 23 RPC 774. Mr Fitzpatrick noted that in Conde Nast Publications Pty Ltd v Virginia Taylor, supra, Burchett J observed,

This aspect of the matter seems to me to have greater importance in a case, such as the present, where the goods sold under a trade mark are goods likely to be subjected to a careful visual examination by any intending purchaser, or even by any person whose interest in them is at all aroused. The appearance of ladies' clothing and men's casual wear is very important. Consumers will not purchase these items over the telephone, or otherwise by a spoken reference to the mark, but will examine them and very often try them on in boutiques or shops.

36.   The initial words from which the WOOLMARK and MERINOMARK trade marks have been coined are singularly lacking in any inherent capacity to distinguish the relevant goods. The suffix in each case is the word MARK which in relation to any trade mark lacks an inherent capacity to distinguish. However there are numerous registrations such as 'Woolmark, Fernmark, Landmark, SmartMark, Goldmark and Healthmark', that show that the Registrar considers that the combination of a known and often descriptive word with the suffix MARK, is enough to create a trade mark that, taken as a whole, has sufficient inherent adaptation to distinguish.

37.   Traders who choose to use trade marks that contain descriptive words or words in common use in trade should not be surprised when other traders in similar goods also choose to use trade marks containing some similar elements. In terms of section 44 of the Act I believe that the Register gives a fair indication of the trade marks one can expect to find in the marketplace so that the state of the Register is a valid consideration in determining deceptive similarity. I note that there are significant numbers of registrations owned by different traders for trade marks containing the words WOOL, MERINO or MARK. The element common to the subject application and the opponent's trade mark is the commonly used suffix MARK. This element does not serve to indicate the origin of the goods. For most Australians wool means Merino wool and thus WOOLMARK and MERINOMARK convey similar ideas. However, I am not satisfied that the combinations of similar ideas and similar suffixes are sufficient to find that the marks are deceptively similar. In Cooper Engineering Co Pty Ltdv Sigmund Pumps Ltd, (1952) 86 CLR 536, Dixon, Williams and Kitto JJ found,

The fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive.

38.   It is an accepted tenet of trade mark law that the first part of a word is the most important for the purpose of distinguishing: London Lubricants, supra, and WOOL and MERINO neither look alike nor sound alike. Clearly these words, WOOL and MERINO convey important and similar information but customers             are not likely to be confused between the words themselves. The suffix works to create a pleasing sound in the marks, taken as a whole, but customers are unlikely to take much note of it because the significant information is wholly contained within the prefix of each of the trade marks.

39.   There has been widespread use over many years of the Woolmark logo and brand research shows that it has achieved almost Australia wide recognition, Exhibit PM-15. I think it is safe to assume that those who recognise the logo would, if asked, refer to it as the WOOLMARK. Given that the opponent's trade marks are very widely recognised the likelihood of the applicant's trade mark causing deception or confusion seems remote.

40.   The opponent's trade marks are used in conjunction with the manufacturers trade marks and therefore customers are already used to seeing garments with the manufacturer's trade mark along with the Woolmark, which is seen as a guarantee of quality. If such goods were to carry another guarantee mark in the form of the MERINOMARK trade mark it does not follow that customers are likely to be deceived or confused.  It seems more likely to me that consumers would understand the mark to be a guarantee by another body as two guarantees by the same body would be somewhat excessive. Clothing carrying these trade marks is relatively expensive and customers are likely to carefully inspect the goods and the marks they carry and thus the risk of deception or confusion is removed.

41.  In Re John Fitton & Co Ltd's Application, (1949) 66 RPC 110 it was noted that the words "likely to deceive or cause confusion" place "no limitation upon the nature of the confusion or deception so envisaged". In that case registration of the trade mark EASYJEST was sought in the face of a registration for the trade mark JEST. The issue was not that the trade marks would be confused, either visually or orally, but that the presence of the common element JEST in each trade mark could confuse consumers into a belief that the goods had a common origin. In that case JEST was an unusual and distinctive element so that the likelihood of confusion was high. This kind of confusion is unlikely where, as in this case, the common element, MARK, is a word in common use as a suffix for trade marks. Nor do I think that the combination of the word MARK with the utterly descriptive words WOOL and MERINO, in the marks, would lead customers to assume anything more than the truth of the matter, which is, that there are two separate bodies engaged in similar trades.

42.   In Registrar of Trade Marks v Woolworths, 45 IPR 411 at 426 French J said:

The position now is that the registrar and the court at first instance would need to be satisfied that there was a reasonable likelihood of deception or confusion before denying acceptance of the application for registration.

And at 428:

..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. It is enough if the ordinary person entertains a reasonable doubt.'

43.   I find that there is not a reasonable likelihood of deception or confusion, the trade marks are not deceptively similar and the opponent has not established this ground of opposition. I therefore have no need to consider the opposed trade mark in terms of the 'other circumstances' provisions of subsection 44(3)(b) of the Act.

Section 60

44.   In order to satisfy a ground of opposition under the provisions of section 60 of the Act, the opponent must establish that the applied for trade mark is substantially identical with or deceptively similar to another trade mark or trade marks that have acquired a reputation in Australia before the priority date of the applied for trade mark and, because of that reputation, use by the applicant of its trade mark, would be likely to deceive or cause confusion.

45.   I have already found in terms of section 44 that the trade marks of the parties are not substantially identical or deceptively similar. As this is a threshold test under section 60, it follows that the opponent is unable to establish this ground.

Section 42(b)

46.   Section 42(b) of the Act provides that an application for the registration of a trade mark must be rejected if its use would be contrary to law. Following the decision of Madgwick J, in Advantage Rent-a-Car Inc v Advantage Car Rental Pty Ltd, 5 IPR 24, the Registrar is obliged, when assessing whether use would be contrary to law under subsection 42(b), to take into account the operation of laws and legislation other than the Trade Marks Act 1995. Here, Mr Heerey alleges that use of the trade mark would contravene sections 52 or 53 of the Trade Practices Act 1974 (TPA) on the basis that use would lead consumers into thinking that the applicant’s goods bearing the mark, MERINOMARK, are licensed by the opponent and/or that in some way the applicant is associated with the opponent.

47.   In the Advantage Rent-A-Car case, Madgwick J confirmed that the test to be satisfied was that use would, rather than could, be contrary to law. The relevant standard to be applied is that there must be a "real or not remote chance or possibility" of a reasonably significant number of people being misled or deceived: Equity Access Pty Limited v Westpac Banking Corporation (1989) 16 IPR 431.

48. Section 52 of the Trade Practices Act 1974 provides:

Misleading or deceptive conduct

(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Section 53(c) of the same Act provides:

False or misleading representations

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

49. Mr Heerey argued that Ms Simpson's confusion is strong evidence that ordinary consumers would be misled. The confusion reported in the Simpson declaration arose because of the joint venture arrangements made between the opponent and the Purely Australian Company Pty Ltd whereby the latter retails through its stores and the Merino to Go store only those wool products produced under license from the opponent. In these circumstances Ms Simpson's fleeting uncertainty or confusion, which was promptly and easily corrected, is easily understood. It is not a circumstance of which the ordinary consumer would be aware. Furthermore, the TPA has a higher standard than does the Trade Marks Act 1995 so that confusion in the sense of wonderment, is not within the meaning of the words 'misleading or deceptive': Parkdale Custom Built Furniture Pty Ltd v Puxa Pty Ltd, (1982) 149 CLR 191. On this basis, I am not satisfied that use of the applied-for trade mark would contravene sections 52 or 53 of the TPA. This ground of opposition has not been established.

Decision

50.   The opponent has failed to establish any of the grounds of opposition on which it relied. I therefore direct that the trade mark application may proceed to registration one month from the date of this decision providing within fourteen days from this decision the applicant formally agrees to an endorsement that  reads as follows:

It is a condition of registration that the trade mark will

only be used in relation to goods made from Merino wool.

If the Registrar has been served with a notice of appeal within one month of my decision, I direct that registration shall not occur until the appeal has been decided or discontinued.

Costs

51.   I award costs against the opponent and direct that the opponent pay the applicant's costs in accordance with the Official Scale (Schedule 8 of the Trade Marks Regulations 1995).

Mary Skivington

Hearing Officer

Trade Marks Hearings

27 April 2004