Wealth Trading Pty Ltd v Kenner Electrics Vic Pty Ltd

[2022] ATMO 200

TRADE MARKS ACT 1995

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

Re: Opposition by Wealth Trading Pty Ltd to registration of trade mark application number 2000422 (Class 37) – KE Kenner Electrics with device – in the name of Kenner Electrics Vic Pty Ltd.

Delegate:	Blake Knowles
Representation:	Opponent: Andrew Sykes of counsel instructed by RNG Lawyers. Applicant: Edwina Whitby of counsel instructed by Baxter IP.
Decision:	2022 ATMO 200 Trade Marks Act 1995 (Cth) – opposition under s 52 – grounds of opposition pursued under ss 42(b), 44, 58, 58A, and 60 – s 60 partially established – application amended to limit services - registration to proceed for remaining services.

Background

1.     This is a decision in the opposition by Wealth Trading Pty Ltd (‘Opponent’) to trade mark number 2000422 (‘Application’) filed by Kenner Electrics Vic Pty Ltd (‘Applicant’) on 3 April 2019 (‘Relevant Date’) for the following trade mark and services:

(‘Trade Mark’)

Class 37: Electrical apparatus installation; Electrical apparatus repair; Electrical installation services; Electrical wiring services; Installation of audio electrical apparatus; Installation of electrical apparatus; Maintenance and repair of electrical apparatus; Maintenance, installation and repair of electrical items and equipment; Repair of electrical appliances; Residential, commercial and industrial installation and repair of electrical and computer wiring and cabling; Installation of security systems; Maintenance and servicing of security alarms; Burglar alarm installation; Burglar alarm installation and repair; Electric appliance installation; Electric appliance installation and repair; Installation and repair of air conditioning apparatus; Installation and repair of air-conditioning apparatus; Installation and repair of telecommunication apparatus; Installation of alarms; Installation of apparatus for air-conditioning; Installation of apparatus for heating; Installation of apparatus for ventilating; Installation of burglar alarms; Installation of cable television systems; Installation of communications network apparatus; Installation of communications network instruments; Installation of data network apparatus; Installation of data processing apparatus; Installation of electronic apparatus; Installation of kitchen appliances; Installation of kitchen equipment; Installation of lighting systems; Installation of telecommunications apparatus; Kitchen equipment installation; Provision of information in relation to the repair, maintenance and installation of goods; Telephone installation; Telephone installation and repair; Television equipment installation and repair

(‘Applicant’s Services’)

2. The Application was examined under s 31 of the Trade Marks Act 1995,[1] and subsequently accepted and advertised for opposition on 30 March 2020 with an endorsement indicating that the provisions of s 44(4) had been applied. The Opponent filed a notice of intention to oppose on 30 April 2020, followed by a statement of grounds and particulars (‘SGP’) on 19 May 2020. The Applicant filed a notice of intention to defend on 28 July 2020.

[1]   Unless otherwise stated, each reference to a section or regulation is a reference to a section of the Trade Marks Act 1995 (Cth) (‘Act’) or regulation of the Trade Marks Regulations 1995 (Cth) (‘Regulations’).

3.     The parties had the opportunity to file evidence in accordance with reg 5.14. The Opponent filed Evidence in Support (‘EIS’) between 23 September and 30 October 2020. The Applicant filed Evidence in Answer (‘EIA’) on 3 May 2021. The Applicant filed Evidence in Reply (‘EIR’) on 11 June 2021.

4.     The Opponent filed additional evidence on 3 August 2022 (‘OAE’). The OAE clarified errors made in previous declarations and its inclusion was not objected to by the Applicant. As such, I have exercised discretion under reg 21.15(4) to take this information into account.

5.     The parties were given the opportunity to be heard by video conference or written submissions. Both parties elected to be heard by videoconference. The matter was heard before me, as a delegate of the Registrar of Trade Marks, on 22 August 2022. The Opponent was represented by Andrew Sykes of counsel, instructed by Patrick Toscano of RNG Lawyers. The Applicant was represented by Edwina Whitby of counsel instructed by Warren Chandler of Baxter IP. I have decided this matter based on the particulars in the SGP, the evidence, and the written and oral submissions of the parties.

6.     This matter was heard concurrently with an opposition to trade mark application number 2089353 involving the same parties. However, for the sake of clarity, a separate decision has been issued for each matter.

Grounds and onus

7.     The SGP nominates grounds of opposition under ss 42(b), 44, 58, 58A, and 60.

8.     The Opponent carries the burden of establishing one or more of the grounds of opposition on the balance of probabilities.[2] The rights of the parties are assessed as at the Relevant Date.  

[2] Pfizer Products Inc v Karam [2006] FCA 1663, [22] (Gyles J); Telstra Corporation Limited v Phone Directories Company Pty Ltd [2015] FCAFC 156, [133] (Besanko, Jagot and Edelman JJ).

Evidence

9.     The Opponent’s evidence consists of nine declarations, and the Applicant’s evidence consists of eleven declarations. For the sake of brevity, I have included a list of all evidentiary declarations in Annexure A.

EIS and EIR

10.     Mr Cai in his declarations declares that the Opponent was incorporated in June 2009 and that it developed the KENNER brand in 2011. The Opponent selected KENNER as it has a positive meaning in German, namely, ‘great’ or ‘good’. Mr Cai provides a Google translation that indicates that the German meaning for KENNER is ‘connoisseur’.

11.     Mr Cai declares that the Opponent is the owner of various registered trade marks for KENNER (‘Opponent’s Word Mark’) and  (‘Opponent’s Composite’), which I shall refer to collectively as the ‘Opponent’s Marks’. Full details of the trade mark registrations owned by the Opponent and relied on in this opposition (‘Opponent’s Registrations’) are annexed in Annexure B.

12.     Mr Cai declares that the Opponent has used the Opponent’s Marks in Australia continuously since 2011 in relation to electric gate openers, garage door openers, portable fridges and freezers, scales, soda blasters, gun safes, office safes, camera bags, and camera tripods, gun bags, and torches. Annexed to the declarations are examples of use. Each of the products referred to has been sold in Australia prior to the Relevant Date except gun bags and torches. As such, I will refer to goods sold prior to the Relevant Date, namely: electric gate openers, garage door openers, portable fridges and freezers, scales, soda blasters, gun safes, office safes, camera bags, and camera tripods, as the ‘Opponent’s Relevant Goods’. 

13.     Mr Cai declares that in addition to eBay, the products offered by the Opponent under the Opponent’s Marks are sold on the websites (established 2012) and (established March 2018).  Products have also been sold on the Amazon Australia website since July 2018. Annexed to the declaration is an extract from one of the Opponent’s websites which states that ‘We provide 12 months warranty for most of our products, also after-sales service to our customers, including replacement parts, technical support, repair, and consulting service.’

14.     Mr Cai declares that the Opponent offers after sales services to its Australian customers in the nature of installation, repair, servicing, and maintenance of its products. Mr Cai also refers to various YouTube instructional videos published by the Opponent prior to the Relevant Date, namely:

(i)Video entitled ‘Kenner gate opener remote learning’.

(ii)Video entitled ‘Kenner gate opener external receiver learning’.

(iii)Video entitled ‘How to install electric solar automatic gate opener motor actuator remote control kenner KNL01’.

15.     Also annexed to Mr Cai’s declaration are copies of receipts which Mr Cai declares relate to after sales services. I note while some of these receipts mention particular products, there is no description of the actual after sales service that was provided.

16.     Mr Cai declares that the Opponent sells various parts and accessories for KENNER products. Some parts and accessories are not themselves branded with the Opponent’s Marks but are endorsed as being suitable for use with such products by being included in marketing material which displays the Opponent’s Marks. Further, the Opponent’s Marks also appear on a manual that is sometimes sold with parts and accessories.  Mr Cai also notes that several parts and accessories are of an electrical nature, namely wires, battery boxes, alarm lamps, electric locks, exit wands, external receivers, photocells, wall push buttons and keypads, solar controllers, and sliding gate hardware kits.

17.     Mr Cai declares that the Opponent’s Marks were also displayed prior to the Relevant Date at the Opponent’s Bayswater showroom, on product packaging, and on product manuals.

18.     Mr Cai provides revenue and promotional expenditure figures relevant to the Opponent’s Marks between 2013 and 2019. Mr Cai also provides information regarding the level of customer engagement with the Opponent’s eBay store. Overall, the figures are appreciable but not enormous, and indicate that the Opponent is carrying on a genuine and profitable business for a variety of goods including those sold under the Opponent’s Marks. However, I note that the figures are aggregations that apply to the entire range of the Opponent’s Relevant Goods, and no specific figures have been provided regarding particular categories of goods. Mr Cai does however provide a product schedule that indicates the number of views that each product has received on the Opponent’s eBay stores since it was first listed. I note that the electric gate openers, garage door openers, portable fridge / freezers, safes, camera tripods, and portable soda blasters sold under the Opponent’s Marks have all received a significant number of views.

19.     Mr Guo in his declarations provides additional information regarding the Opponent’s activities, including Internet Archive Wayback Machine extracts of the Opponent’s websites between 2012-2020. Mr Guo also provides a copy of a business card bearing the Opponent’s Composite used by the Opponent’s employees in relation to after sales service since 2011. The business cards are handed out by employees at the time of rendering after sales service and are also available at the Opponent’s warehouse and showroom. Mr Guo also provides photographs of T-shirts bearing the Opponent’s Composite worn by staff members.

20.     Mr Guo confirms that a three-month warranty applies to products sold by the Opponent, during which time the Opponent will repair any defective products free of charge. Other after sales services (such as installation, servicing, and maintenance) are charged on a case-by-case basis.  

21.     Mr Guo refers to further YouTube instructional videos published by the Opponent, namely:

(i)Videos entitled ‘Kenner garage roller door opener – erase all remotes’ and ‘Kenner garage roller door opener – remotes learning’.

(ii)Video entitled ‘Kenner garage opener learn remotes’.

(iii)Video entitled ‘How to learn remotes for Kenner garage opener’.

(iv)Video entitled ‘How to check the limit switch of Kenner swing gate opener’.

(v)Video entitled ‘How to check whether limit switch of Kenner swing gate opener (far end)’.

22.     Mr Toscano in his declaration provides screenshots from the website (‘Applicant’s Website’) and Facebook pages which contain information on the nature of the services provided by the Applicant. The screenshots indicate that the Applicant supplies electrical components and appliances (e.g. air conditioners) in the course of providing electrician services. Mr Toscano also refers to instances where the Applicant promoted its ability to connect motorised gates, remote security and monitoring devices, and the ability to supply and recycle batteries.

23.     Mr Toscano also provides information regarding other electrician businesses which advertise that they supply, install, and/or repair electric gates and automated doors, security and monitoring devices, home automation systems, lighting, and some home appliances.

EIA

24. Mr Kenner declares that he is a qualified electrician, and that the Applicant adopted the Trade Mark due to KENNER being his surname and due to the association of that name with his uncle who previously operated electrical services businesses in NSW and the ACT for over 20 years.

25.     Mr Kenner declares that prior to starting the Applicant’s business, he conducted ASIC and online searches using Google to assess the availability of KENNER ELECTRICS. He concluded the name was available and commissioned a graphic designer to create the Trade Mark on 13 May 2014. An invoice dated 27 May 2014 from Digisign & Print Pty Ltd is annexed.

26.     Mr Kenner declares that the Applicant specialises in domestic, commercial, and industrial electrical work. Mr Kenner declares that the Applicant has continuously used the Trade Mark (and word mark ‘KENNER ELECTRICS’) since 2014.

27.     Mr Kenner declares that the Trade Mark has been used extensively in advertising and promotional activities, including on the Applicant’s Website, vehicles, uniforms, stickers (placed on customer switchboards), stationery, flyers, and banners. The Applicant also promotes the Trade Mark via Google AdWords, SEO activities, numerous online directories, and in social media (Facebook and Instagram). Mr Kenner also declares that the Applicant has won or been a finalist for several business awards between 2014 and 2019.

28.     Mr Kenner annexes Internet Archive Wayback Machine extracts of the Applicant’s Website from between January 2016 and March 2021. Mr Kenner also annexes numerous invoices for various electrical services provided by the Applicant between 2014 and 2019. I note that only some of these invoices bear the Trade Mark.

29.     Mr Kenner provides figures which indicate that services provided under the Trade Mark have generated a reasonable level of revenue between 2014 and 2019, although the level of promotional expenditure is relatively small.  

30.     Mr Kenner refers to the after sales services that the Opponent claims to provide, opining that “there is nothing electrical about the operation of a portable fridge or freezer”, and that customers of the Opponent’s Relevant Goods “would not be looking for an award-winning local A-grade domestic electrician”. Mr Kenner also refutes the claim that the Applicant is selling goods, advising that products carried in vans by the Applicant are incidental to the services, such as tools, nuts and bolts, power points, fuses, light fixtures, safety switches, LEDs, downlights, and electrical hardware. Mr Kenner declares that the Applicant does not manufacture or sell goods.

31.     Mr Kenner declares that he is not aware of any instances of confusion in the marketplace, despite extensive use of the Trade Mark and KENNER ELECTRICS.

32.     The remainder of the EIA consists of customer declarations wherein customers refer to electrical services provided by the Applicant in the Melbourne area since 2014.

Discussion

Section 58

1. To establish this ground, the Opponent must show use in Australia, by some person other than the Applicant, of a trade mark that is substantially identical with the Trade Mark,[3] and which has been used for goods or services that are the ‘same kind of thing’ as the Applicant’s Services.[4] The trade mark/s relied on by the Opponent must have been used in the course of trade prior to the Relevant Date, or prior to the date of first use of the Trade Mark, whichever is earlier.

   [3] Carnival Cruise Lines Inc v Sitmar Cruises Ltd (1994) 120 ALR 495, 513 (Gummow J).

   [4] Re Hicks's Trade Mark (1897) 22 VLR 636, 640 (Holroyd J).

2. The test for whether two marks are substantially identical requires that they be assessed as follows:

   they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison.[5]

   [5] The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407, 414 (Windeyer J).

3. In Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (‘Pham’), the Full Federal Court held that a comparison of marks for determining whether they are substantially identical is to be carried out cognisant of the essential elements of the trade marks, noting that essential elements are unlikely to be found in mere descriptive elements.[6] The court went on to find that the following two trade marks were substantially identical, based on the common presence of the word INSIGHT and a similar device, and notwithstanding differences in font, stylisation, and descriptive material:

   [6] [2017] FCAFC 83, [51]-[52] (Greenwood, Jagot, and Beach JJ).

4. However, more recently in PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd,[7] the Full Federal Court held that the following two trade marks were not substantially identical, having regard to the stylised tail appearing on the last letter of the first mark, and the font and block characteristics of the second mark:

   [7] [2021] FCAFC 128, [160]-[162] (Jagot, Nicholas, Burley JJ).

   37.     The Opponent in the SGP alleges that the Trade Mark is substantially identical with the Opponent’s Word Mark and the Opponent’s Composite.  The parties in submissions agreed that the Trade Mark is substantially identical with the Opponent’s Composite. I note that it is unusual for parties to agree on an issue on which the outcome of a matter may turn. However, the agreement appears to be driven by the fact that each party considers their position stronger in respect of which of them first used their respective trade mark for relevant services.

   38.     I give due weight to the concession of the parties regarding substantial identity, and I would defer to it if the matter was borderline. However, I am required to be satisfied that the respective trade marks are substantially identical, and I am not bound to reach this finding simply because the parties agree on the issue. The Trade Mark and the Opponent’s Composite are compared below:

   39.     While both marks share the word KENNER, each also contains a prominent and distinctive device as an essential element. The respective device elements, if considered in isolation, are in my view not deceptively similar. I also consider the devices in this case to be more memorable than the abstract and conceptually similar device elements that formed part of the trade marks under comparison in Pham. Given the overall impact of the distinctive device elements on the respective trade marks, I am not satisfied that the Trade Mark is substantially identical with the Opponent’s Composite.

   40.     Further, given the presence of the KE device in the Trade Mark, I am not satisfied that the Trade Mark is substantially identical with the Opponent’s Word Mark. To conclude otherwise would be to effectively ignore a distinctive and prominent essential element of the Trade Mark. This element is more than mere window dressing and is an appreciable cognitive cue. This renders the Trade Mark as not being substantially identical to the word KENNER solus.

   41.     As the Opponent has not established that the trade marks it had used prior to the Relevant Date are substantially identical with the Trade Mark, the ground under s 58 is not established.

   Section 60

   42.     To establish this ground, the Opponent must demonstrate a reputation in a trade mark existing in Australia at the Relevant Date. The Opponent must then prove that because of this reputation, use of the Trade Mark is likely to deceive or cause confusion.

   43.     The Opponent relies on reputation in the Opponent’s Marks as the basis for this ground. The Opponent must establish a reputation and a likelihood of confusion exists amongst a substantial number of consumers.[8] Reputation can be demonstrated in several ways. For example, it can be established by demonstrating that a significant number of consumers are regularly exposed to a particular trade mark or that a mark is viewed with a certain level of esteem in the market. It may also be inferred from a high volume of sales combined with substantial advertising figures and other promotions.[9] The length of use of a trade mark in the Australian market is also relevant in determining the existence of reputation and its extent. However, it is possible for a trade mark to accrue reputation in a relatively short period of time, particularly given the capacity of the Internet and social media to bring immediate and widespread attention to new products and brands.

   44.     The Opponent’s evidence indicates that significant sales of goods have been made under the Opponent’s Marks. However, the range of goods sold is relatively diverse, and the Opponent has only provided aggregated revenue figures to support its claim to reputation. The aggregation encompasses total sales of goods under the Opponent’s Marks in addition to the provision of ‘after sales services’, with no breakdown as to what revenue is attributable to sale of each product and what revenue is attributable to after sales services.

   45.     However, the number of views for each product on the schedule provided by the Opponent, in combination with the aggregated revenue figures, allows a reasonable inference to be drawn regarding the level of exposure of the Opponent’s Marks in the marketplace. I am satisfied that it is more likely than not that the Opponent has some level of reputation in relation to electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters.

   46.     I am also satisfied, that taking into account the similarity between the Trade Mark and the Opponent’s Marks (with KENNER being the essential distinctive feature of each), that there is a likelihood of confusion if the Trade Mark were to be used in relation to installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters.

   47.     I am not satisfied that the reputation in the Opponent’s Mark would lead to confusion if the Trade Mark were used in relation to other installation, maintenance, and repair services covered by the Applicant’s Services.

   48.     As such, the ground under s 60 is made out in relation to the Applicant’s Services insofar as they relate to: installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters.

   49.     The ground under s 60 is not made out in respect of the Applicant’s Services insofar as they don’t relate to those services mentioned above. As such, I will consider the remaining grounds of opposition in relation to services other than installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters.

   [8] Renaud Cointreau v Cordon Bleu International Ltee [2001] FCA 1170, [74]-[75] (Moore, Tamberlin and Goldberg JJ).

   [9] McCormick & Company Inc v McCormick [2000] FCA 1335, [86] (Kenny J).

   Section 44

1. To establish grounds of opposition under s 44, the Opponent must rely on at least one pending or registered trade mark with a priority date earlier than the priority date of the Application (in this case, the Relevant Date), and which is in the name of a person other than the Applicant. The earlier mark must be either substantially identical with or deceptively similar to the Trade Mark. The earlier mark must also be filed or registered in respect of services that are similar to the Applicant’s Services, or goods that are closely related to the Applicant’s Services.

2. The Opponent relies on the Opponents Registrations for the Opponent’s Marks as the basis for the s 44 ground. The priority dates of each of the Opponent’s Registrations are earlier than the Relevant Date. As such, I must consider whether the Trade Mark is substantially identical with or deceptively similar to the Opponent’s Marks. If that is the case, then I must consider whether the Applicant’s Services are closely related to the any of the goods of the Opponent’s Registrations.

3. I have already determined under s 58 that the Opponent’s Marks are not substantially identical with the Trade Mark. As such, I will turn to the assessment of deceptive similarity.  The test for whether trade marks are deceptively similar is broader than the test for whether they are substantially identical and requires that one trade mark so nearly resemble another that it is likely to deceive or cause confusion.[10] In determining deceptive similarity, I am guided by the following principles:

   -There must be a real, tangible danger of confusion, not just a mere possibility.[11] Likelihood of confusion can be established if a number of consumers would be caused to wonder whether the applicant’s goods or services come from some other source. It is enough if the ordinary person entertains a reasonable doubt.[12]

   -The impression of the respective marks as a whole must be considered, including the size and prominence of word and device elements and their relationship to each other.[13] However, deceptive similarity can also be found where one mark uses an essential feature of the other.[14]

   -Consumers may retain an imperfect recollection of a mark or its essential features.[15]

   -It may be relevant that an element of the trade marks under consideration is descriptive. However, descriptiveness does not preclude a finding of deceptive similarity.[16]

   -The impression of the mark on ordinary consumers is relevant, not the impression on those who are particularly perceptive or cautious, or those who are exceptionally careless or stupid.[17]

   -It must be considered how the goods or services are ordinarily sold or provided.[18]

   [10] Trade Marks Act 1995 (Cth) s 10.

   [11] Southern Cross Refrigerating v Toowoomba Foundry (1954) 91 CLR 592, 595 (Kitto J).

   [12] Coca‑Cola Co v All‑Fect Distributors Ltd [1999] FCA 1721, [39] (Black CJ, Sundberg and Finkelstein JJ); Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592, 595 (Kitto J).

   [13] Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380, [100] (Yates J); Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, [91]-[103] (Moore, Sackville, and Emmett JJ).

   [14] Saville Perfumery Ltd v June Perfect Ltd (1941) 58 RPC 147, 174-5 (Viscount Maugham); De Cordova v Vick Chemical Co (1951) 68 RPC 103, 105-6 (Lord Radcliffe).

   [15] Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, [79] (Moore, Sackville, and Emmett JJ).

   [16] Lift Shop P/L v Easy Living Home Elevators P/L [2014] FCAFC 75, [64] (Besanko, Yates, and Mortimer JJ).

   [17] Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641, 658 (Dixon and McTiernan J).

   [18] Ibid.

4. I consider the presence of the word KENNER in the Trade Mark, being a distinctive and memorable feature, clearly renders the Trade Mark deceptively similar to both of the Opponent’s Marks. There is a real, tangible danger that a consumer relying on imperfect recollection may be caused to wonder whether similar or closely related goods or services provided under the respective trade marks originate from the same trade source or are otherwise connected in some way. As such, I must now consider whether the Applicant’s Services are closely related to the goods of the Opponent’s Registrations.   

5. In Kicking Horse Coffee Co. Ltd, Hearing Officer Brown summarised the authorities as follows:

   The words ‘closely related’ are not defined in the Act. In the Registrar of Trade Marks v Woolworths French J made the following observations:

   The term "closely related" recognises that goods and services are different things. There will be classes of goods which are similar to each other. There will also be classes of services which are similar to each other. But the word "similar" does not apply as between goods and services. So there must be some other form of relationship between the services covered by one mark and the goods covered by another to enable the goods or services in question to be described as "closely related"… it is a term of wider import than “similar”…

   In 1979 around the time when the concept of closely related was first introduced into Australian trade mark legislation, FJ Smith, the then Registrar of Trade Marks explained the nature of the relationship between goods and services that would support a finding that they were closely related:

   It will be an exercise of the Registrar’s judgement and ultimately of his discretion whether goods and services are closely related. The relationship would have to be close, not merely a tenuous or remote connection. Where the services are performed upon, or in relation to, or even by means of certain goods, this is a factor which would make deception or confusion between marks used in respect of those services and goods more likely.

   In Woolworths French J stated that the ‘relationships may, and in perhaps most cases will, be defined by the function of the service with respect to the goods’. Similarly, in Caterpillar Loader Hire (Holdings) v Caterpillar Tractor Co Lockhart J stated that ‘confusion is more likely to arise where services protected by service marks necessarily involve the use or sale of goods’.[19]

   [19] [2018] ATMO 193, [19]-[21] (citations omitted).

6. The Opponent also cites NEC Corporation v Punch Video (S) Pte Limited,[20] where Branson J held that the installation, maintenance, and repair of communications and electronic equipment were services closely related to automobile audio-visual entertainment equipment.  Her Honour held, after brief analysis, that:

   The services in respect of which Trade Mark No 326407 is registered would include the installation, maintenance and repair of the goods in respect of which the Trade Mark is sought to be registered.  I conclude that Trade Mark No 326407 is registered in respect of services closely related to the goods in respect of which the Trade Mark is sought to be registered.[21]

   [20] [2005] FCA 116.

   [21] Ibid, [46].

7. Some caution must be exercised in assessing whether claims for installation, maintenance, and repair services are closely related to particular goods. Virtually every mechanical, electrical or electronic product is capable of being repaired or maintained. Similarly, many such products require installation to varying degrees. However, it would be incorrect to conclude that installation, maintenance, and repair services are always closely related to goods that may require installation, maintenance, or repair from time to time. The nature of the goods and services in question must be such that consumers are likely to assume a common trade source, or assume that there is some other association or connection between the traders. In the absence of such assumptions, there can be no real likelihood of deception or confusion.

8. There are obvious instances where the relationship between goods and services would give rise to relevant assumptions by consumers. For example, a manufacturer of motor vehicles will often operate service centres for the maintenance and repair of vehicles. The association between such services and the vehicles themselves is enhanced due to motor vehicle owners being required to regularly service their vehicles in order to maintain their warranty. Given these circumstances, consumers are more likely to be confused by the use by different traders of the same or similar mark in relation to repair and maintenance of motor vehicles (as services) and motor vehicles (as goods) respectively. Conversely, in situations where it is not common for manufacturers to install, maintain, or repair their own goods (because such services are rarely required, or are normally performed by third parties), the likelihood of deception or confusion is reduced, particularly where there are differences in the Trade Marks that may also mitigate the potential for incorrect assumptions on the part of the consumer. For example, without evidence to the contrary, I would not expect that a manufacturer of items such as cables, switches, and wire would likely maintain or install those products.

9. In this case, it seems obvious at first glance that a business providing general electrician services is highly unlikely to be confused with a business that manufactures electric gate and garage door openers and fridges (among other things), notwithstanding that both may use a similar brand and that the latter may employ or contract technicians with some electrical training to repair the goods under warranty from time to time. The Opponent submits that ‘the finding that electrical goods, and services that relate to such goods, are closely related is most likely to occur if the same trade channels provide both the goods and services. If, for example, customers are accustomed to buying goods from the same trade channel where they seek installation, repair and maintenance of such goods, then confusion is more likely to arise’. The Opponent refers specifically to what it considers the most obvious examples of conflicts, namely:

   (a)   “Installation of kitchen equipment” (Applicant’s Services) and “Refrigerating Installations” (Opponent’s Prior Registered Goods)

   (b)   “Maintenance and repair of electrical apparatus” (Applicant’s Services) and “Automatic door opening apparatus (electric)” (Opponent’s Prior Registered Goods).

   (c)    “Electrical apparatus installation” (Applicants Services) and “Automatic door opening apparatus (electric)”.

10. The Opponent also refers to examples in the EIS of the websites of various Australian electricians, including the Applicant, which indicate that those businesses supply, install or repair various apparatus including electric gates, doors, shutters, lifts, automation and access controls, hospitality and catering equipment, sensor lights, intercoms, CCTVs, refrigeration systems, and security systems.

11. There is merit to the Opponent’s submission regarding confusion being more likely where there is a commonality of trade source of the goods and the repair and maintenance of those goods. However, I note that in many cases it is often not the manufacturer of electrical goods that sells and offers installation and repair services to the end consumer. Many electrical products are sold via retailers, and it is often through these retailers that installation and repair services are arranged. Further, many electrical items are often repaired by third party authorised repairers, and not by the manufacturer of the goods themselves (particularly where goods are manufactured overseas).

12. I do not find the evidence relied on by the Opponent of electrician businesses supplying and installing a range of products to be particularly compelling.  Electricians would generally be understood as pure service providers as opposed to the trade source of products which they install or sell in the course of their business. The mere fact that an electrician may supply, install, or repair a broad range of electrical products itself does not indicate a particularly close relationship between the electrical goods themselves and the services of installation, maintenance, and repair of those electrical goods. More compelling evidence would have been further examples of manufacturers of electrical goods also providing installation, maintenance, and repair services for those products, aside from the limited evidence of the Opponent’s own activities.  

13. I have already determined under s 60 that the Application should be refused insofar as it relates to installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters. As such, it is not necessary that I reach a finding whether these particular services are closely related to any of the goods covered by the Opponent’s Registrations.

14. I also do not consider that the evidence supports a broader finding that the various other installation, maintenance, and repair services covered by the Applicant’s Services are closely related to any of the goods covered by the Opponent’s Registrations.

15. As such, the ground under s 44 is not established.

    Section 58A

16. Section 58A is only applicable where a prima facie ground of opposition has been established under s 44, and the Applicant has successfully overcome the ground of opposition by relying on evidence of prior and continuous use under s 44(4).

17. As I did not find the ground of opposition under s 44 had been established and overcome under s 44(4), s 58A also cannot be established.

    Section 42(b)

18. The Opponent under s 42(b) alleges that use of the Trade Mark would constitute a breach of ss 18 and 29 of the Australian Consumer Law (‘ACL’), and the tort of passing off.

19. I have already decided that the opposition has succeeded under s 60 in relation some of the Applicant’s Services. With regard to the remainder of the Applicant’s Services for which s 60 was not established, I do not consider that the evidence establishes that consumers would be likely to be misled or deceived (for the same reason they would not be confused under s 60). As such, the claims that use of the Trade Mark would breach ss 18 and 29 of the ACL or constitute passing off are not established.

20. As the Opponent has not established that use of the Trade Mark would be contrary to law, the ground under s 42(b) is not established.45

    Resolution of opposition

21. In Apple Inc. v Registrar of Trade Marks, Yates J stated that:

    My finding that the application for registration of APP STORE for the designated services in Class 35 must be rejected determines the fate of the application as a whole. This is because there are no separate applications for registration of the mark for the designated services Classes 38 and 42. There is but one application covering registration of the mark for all the services that have been specified. If the application fails in one respect, it fails as a whole. In these circumstances, is not necessary for me to proceed to determine the registrability of APP STORE for the designated services in Class 38 or Class 42.[22]

    [22] [2014] FCA 1304, [232].

22. In circumstances where an opposition has been established in respect of some, but not all, of the goods or services under consideration, the Registrar may proceed to reject the application in its entirety, under the principles outlined above. However, the Registrar also has a discretion to offer an amendment allowing an applicant to amend the application to remove goods or services for which a ground of opposition has been established.

23. I offered the Applicant the opportunity to exclude installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters. from the Applicant’s Services.  This amendment in my view sufficiently removes those of the Applicant’s Services for which I consider that a ground of opposition has been established.

24. The Applicant agreed to the proposed amendment, which has now been made. On that basis I find that the opposition has not been established for the remainder of the Applicant’s Services. 

    Decision and award of costs

25. I find that, subject to the amendment referred to above, the Opponent has not established any of the grounds of opposition.  The Trade Mark may proceed to registration not less than one month from the date of this decision for:

    Class 37: Electrical apparatus installation; Electrical apparatus repair; Electrical installation services; Electrical wiring services; Installation of audio electrical apparatus; Installation of electrical apparatus; Maintenance and repair of electrical apparatus; Maintenance, installation and repair of electrical items and equipment; Repair of electrical appliances; Residential, commercial and industrial installation and repair of electrical and computer wiring and cabling; Installation of security systems; Maintenance and servicing of security alarms; Burglar alarm installation; Burglar alarm installation and repair; Electric appliance installation; Electric appliance installation and repair; Installation and repair of air conditioning apparatus; Installation and repair of air-conditioning apparatus; Installation and repair of telecommunication apparatus; Installation of alarms; Installation of apparatus for air-conditioning; Installation of apparatus for heating; Installation of apparatus for ventilating; Installation of burglar alarms; Installation of cable television systems; Installation of communications network apparatus; Installation of communications network instruments; Installation of data network apparatus; Installation of data processing apparatus; Installation of electronic apparatus; Installation of kitchen appliances; Installation of kitchen equipment; Installation of lighting systems; Installation of telecommunications apparatus; Kitchen equipment installation; Provision of information in relation to the repair, maintenance and installation of goods; Telephone installation; Telephone installation and repair; Television equipment installation and repair; all of the aforesaid excluding: installation of electric gate openers and garage door openers, repair and maintenance of electric gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters, provision of information in relation to installation, maintenance, and repair of gate openers, garage door openers, portable fridge / freezers, safes, scales, camera tripods, and portable soda blasters.

26. If the Registrar is served with a notice of appeal, I direct that registration shall not occur until either the appeal is withdrawn or discontinued.  Otherwise, the disposition of the Application should be in accordance with the Court’s order or direction.

27. Both parties sought an award of costs in their favour. Costs generally follow the event. As both parties have had a measure of success, I decline to award costs.

    Blake Knowles

    Hearing Officer

    Delegate of the Registrar of Trade Marks

    14 November 2022
    

    Annexure A- Evidence declarations

    EIS

    1.First declaration of Ming Cai, Director of the Opponent, made on 22 September 2020, with Exhibits MC-1 to MC-122.

    2.First declaration of Yin Guo, Company Secretary of the Opponent, made on 23 September 2020, with Exhibits YG-1 to YG-14.

    3.Second declaration of Yin Guo, made on 30 October 2020, with Exhibits YG-14 to YG-17.

    4.First declaration of Patrick Toscano, solicitor for the Opponent, made on 22 September 2020, with Exhibits PT-1 to PT-36.

    5.Second declaration of Patrick Toscano, made on 24 September 2020, with Exhibit PT-37.

    EIA

    6.Declaration of Jamin Kenner, Managing Director of the Applicant, made on 30 April 2021, with Exhibits JK-1 to JK-36.

    Applicant customer declarations

    7.Declaration by Murray Wilson, made on 18 December 2020.

    8.Declaration by Robert Stone, made on 18 December 2020.

    9.Declaration by Peter Kernebone, made on 21 December 2020.

    10.Declaration by Nardi Croaker, made on 21 December 2020.

    11.Declaration by Ellen Walters, made on 24 December 2020.

    12.Declaration by Ben Guildford, made on 21 December 2020.

    13.Declaration by Greg Lewis, made on 23 December 2020.

    14.Declaration by Liesl Trapnell, made on 23 December 2020.

    15.Declaration by Brenda Webb, made on 27 December 2020.

    16.Declaration by John Carrick, made on 23 December 2020.

    EIR

    1.Third declaration of Yin Guo, made on 11 June 2021, with Exhibits YG-18 to YG-49.

    OAE

    2.Second declaration of Ming Cai, made on 3 August 2022.

    3.Third declaration of Patrick Toscano, made on 3 August 2022, with Exhibit PT-38.

    Annexure B – Opponent’s Registrations

    Trade mark number:   1876005

    Trade Mark: [23]   

    [23] This registration consists of a series comprising eighteen representations of the same mark presented in different colours.

    Filing / Priority Date:  27 September 2017

    Goods/Services:

    Class 6: Cash safes; Cash safes of metal; Cash safes, other than of metal; Fire safe cabinets (safes) of metal; Lockable security containers (safes); Safes (metal or non-metal); Safes, electronic; Security boxes (safes); Security cases (safes) for money; Security chests (safes); Security units (safes); Stores (safes); Strongboxes (safes) not of metal; Strongboxes (safes) of metal; Strongchambers (safes) not of metal; Strongchambers (safes) of metal; Strongrooms (safes) of metal; Safety cashboxes; Safety chains of metal; Safety deposit boxes; Security boxes (money boxes) of metal; Security boxes (money boxes), not of metal; Security boxes of metal; Ammunition boxes of metal; Boxes for stacking purposes (metal); Boxes for storage purposes (metal); Boxes of common metal; Storing boxes of common metal; Cash drawers of metal; Cashboxes (metal or non-metal); Fire safe boxes; Fire surrounds (mantels andmantelpieces) of metal; Fireproof cabinets of metal (other than furniture); Key cabinets (not furniture) of metal; Mechanisms of metal (non-electric) for lifting doors; Mechanisms of metal (non-electric) for lifting windows; Mechanisms of metal (non-electric) for locking doors; Mechanisms of metal (non-electric) for locking windows; Mechanisms of metal (non-electric) for opening doors; Mechanisms of metal (non-electric) for opening windows; Mechanisms of metal (non-electric) for sliding doors; Mechanisms of metal (non-electric) for sliding windows; Portable boxes (containers) of metal; Metal cabinets (other than furniture); Metal security cabinets (other than furniture); Lockable boxes (metal) for cash and valuables; Lockable boxes of metal for tools (empty); Lockable chests of metal for tools (empty); Lockable security containers made of metal; Metal safety boxes; Metal safety valves (other than parts of machines); Safe boxes; Safe deposit boxes; Safety and caution cones (beacons of metal, non-luminous); Security closures of metal; Security containers of metal; Security devices (locks) of metal for vehicles; Security devices of metal, other than for vehicles; Security gratings of metal for the outside of buildings; Security shutters of metal; Security trays of metal; Storage units of metal (other than furniture); Storage units of metal for use in vehicles; Storage vessels of metal (other than for household use); Tool chests of metal (empty); Fire-dogs (andirons); Fireplace mantles of metal; Security door frames of metal for buildings; Security doors of metal for buildings

    Class 7: Automatic door apparatus (electric); Automatic door closing apparatus (electric); Automatic door opening apparatus (electric); Electromechanical apparatus for opening doors; Electromechanical devices for closing doors; Electromechanical devices for closing garage doors; Electromechanical devices for opening garage doors; Electric closers for doors; Electric closers for windows; Electric door closers; Electric door motors, other than for land vehicles; Electric door openers; Electric motors for use with doors; Electric motors for use with windows (other than land vehicle windows); Machines for operating gates (pneumatic or hydraulic); Mechanical closers (electric) for doors; Mechanical closers (electric) for windows; Motorised operating rods for blinds; Motorised operating rods for curtains; Motorised operating rods for doors; Motorised operating rods for roller shutters; Motorised operating rods for windows; Sanding machines; Electricity generating sets; Electricity generators; Automatic closers (electric) for doors; Door openers, electric; Door openers, hydraulic; Door openers, pneumatic; Electrical apparatus for opening doors; Electrical apparatus for opening skylights; Electrical openers for garage doors; Electrical soldering bits; Electrical soldering irons; Electrical welding apparatus; Electrical welding instruments; Electrically heated soldering irons; Electrically operated desoldering hand piece; Electrically operated door closers; Electrically operated drive units for closing doors; Electrically operated drive units for closing garage doors; Electrically operated drive units for closing grilles; Electrically operated drive units for closing shutters; Electrically operated drive units for opening doors; Electrically operated drive units for opening garage doors; Electrically operated drive units for opening grilles; Electrically operated drive units for opening shutters; Electrically operated window closers; Electrically powered machines

    Class 9: Metal tripods for photographic apparatus; Mounts for attachment to tripods for cameras; Tripods for binoculars; Tripods for cameras; Tripods for electronic apparatus; Tripods for loudspeakers; Tripods for microphones; Tripods for photographic apparatus; Tripods for video cameras; Metal monopods for photographic apparatus; Bags adapted for carrying photographic apparatus; Cases adapted for photographic apparatus; Cases adapted for photographic equipment; Cases adapted for photographic instruments; Holders for photographic films; Light flashing apparatus (photographic apparatus); Light sources (flashlamps) for photographic use; Lighting (flashlamps) for photographic use; Fitted bags for photographic apparatus; Photographic apparatus; Photographic apparatus and instruments; Photographic darkroom lighting; Photographic equipment; Photographic racks; Photographic screens; Pouches for photographic apparatus; Stands for photographic apparatus; Bags adapted or shaped to contain cameras; Bags adapted to carry video apparatus

    Class 15: Tripods for musical instruments; Music stands; Music stands adapted for use with musical instruments; Stands for musical instruments

    Trade mark number:   1876629

    Trade Mark:   kenner

    Filing / Priority Date:  9 October 2017

    Goods/Services:  

    Class 6: Cash safes; Cash safes of metal; Cash safes, other than of metal; Fire safe cabinets (safes) of metal; Lockable security containers (safes); Safes (metal or non-metal); Safes, electronic; Security boxes (safes); Security cases (safes) for money; Security chests (safes); Security units (safes); Stores (safes); Strongboxes (safes) not of metal; Strongboxes (safes) of metal; Strongchambers (safes) not of metal; Strongchambers (safes) of metal; Strongrooms (safes) not of metal; Strongrooms (safes) of metal; Safety cashboxes; Safety chains of metal; Safety deposit boxes; Security boxes (money boxes) of metal; Security boxes (money boxes), not of metal; Security boxes of metal; Ammunition boxes of metal; Boxes for stacking purposes (metal); Boxes for storage purposes (metal); Boxes of common metal; Cash drawers of metal; Cashboxes (metal or non-metal); Fire safe boxes; Fire surrounds (mantels and mantelpieces) of metal; Fireproof cabinets of metal (other than furniture); Key cabinets (not furniture) of metal; Metal cabinets (other than furniture); Metal security cabinets (other than furniture); Lockable boxes (metal) for cash and valuables; Lockable boxes of metal for tools (empty); Lockable chests of metal for tools (empty); Lockable security containers made of metal; Metal safety boxes; Metal safety valves (other than parts of machines); Portable boxes (containers) of metal; Safe boxes; Safe deposit boxes; Safety and caution cones (beacons of metal, non-luminous); Security closures of metal; Security containers of metal; Security devices (locks) of metal for vehicles; Security devices of metal, other than for vehicles; Security gratings of metal for the outside of buildings; Security shutters of metal; Security trays of metal; Storage units of metal (other than furniture); Storage units of metal for use in vehicles; Storage vessels of metal (other than for household use); Storing boxes of common metal; Tool boxes of metal (empty); Tool cabinets of metal (empty); Strongboxes (cash boxes); Strongboxes (metal or non-metal); Mechanisms of metal (non-electric) for lifting doors; Mechanisms of metal (non-electric) for lifting windows; Mechanisms of metal (non-electric) for locking doors; Mechanisms of metal (non-electric) for locking windows; Mechanisms of metal (non-electric) for opening doors; Mechanisms of metal (non-electric) for opening windows; Mechanisms of metal (non-electric) for sliding doors; Mechanisms of metal (non-electric) for sliding windows; Tool chests of metal (empty); Fire-dogs (andirons); Fireplace mantles of metal; Security door frames of metal for buildings; Security doors of metal for buildings

    Class 7: Automatic door apparatus (electric); Automatic door closing apparatus (electric); Automatic door opening apparatus (electric); Electromechanical apparatus for opening doors; Electromechanical devices for closing doors; Electromechanical devices for closing garage doors; Electromechanical devices for opening garage doors; Electric closers for doors; Electric closers for windows; Electric door closers; Electric door motors, other than for land vehicles; Electric door openers; Electric motors for use with doors; Electric motors for use with windows (other than land vehicle windows); Machines for operating gates (pneumatic or hydraulic); Mechanical closers (electric) for doors; Mechanical closers (electric) for windows; Motorised operating rods for blinds; Motorised operating rods for curtains; Motorised operating rods for doors; Motorised operating rods for roller shutters; Motorised operating rods for windows; Sanding machines; Electricity generating sets; Electricity generators; Automatic closers (electric) for doors; Door openers, electric; Door openers, hydraulic; Door openers, pneumatic; Electrical openers for garage doors; Electrical soldering bits; Electrical soldering irons; Electrical welding apparatus; Electrical welding instruments; Electrically heated soldering irons; Electrically operated desoldering hand piece; Electrically operated door closers; Electrically operated drive units for closing doors; Electrically operated drive units for closing garage doors; Electrically operated drive units for closing grilles; Electrically operated drive units for closing shutters; Electrically operated drive units for opening doors; Electrically operated drive units for opening garage doors; Electrically operated drive units for opening grilles; Electrically operated drive units for opening shutters; Electrically operated window closers; Electrically powered machines; Electrical apparatus for opening doors; Electrical apparatus for opening skylights

    Trade mark number:   1916372

    Trade Mark: [24]   

    [24] This registration consists of a series comprising eighteen representations of the same mark presented in different colours.

    Filing / Priority Date:  28 March 2018

    Goods/Services:  

    Class 11: Beverage cooling apparatus; Beverage refrigerators for use in automobiles; Beverage-cooling apparatus; Refrigerating apparatus for beverages; Domestic appliances for producing ice; Domestic appliances for refrigerating; Domestic machines for making ice; Electric cool boxes; Electric cooling apparatus for use with milking installations; Food display units (refrigerated or heated); Food servery units (refrigerated or heated); Refrigerated cabinets for the display of food; Refrigerated cabinets for the storage of food; Refrigerators for foodstuffs; Freezer display units; Freezer installations; Freezer storage units; Freezers; Freezing apparatus; Freezing cupboards; Freezing installations; Fridge-freezers; Refrigerating enclosures for freezing; Refrigerating or freezing apparatus for cool rooms; Ice dispensing apparatus; Ice machines; Ice machines and apparatus; Ice makers; Ice making apparatus; Ice making machines; Ice producing apparatus; Ice storage apparatus; Installations for refrigerating; Meat chests (refrigerated); Meat safes (refrigerated); Portable refrigerating boxes (electric); Refrigerated boxes; Refrigerated cabinets; Refrigerated cabinets for the display of drink; Refrigerated cabinets for the storage of drink; Refrigerated counters; Refrigerated display cases; Refrigerated display units; Refrigerated holding and display tanks for live fish and seafood; Refrigerated merchandising apparatus; Refrigerated units; Refrigerating apparatus; Refrigerating appliances; Refrigerating cabinets; Refrigerating chambers; Refrigerating containers (gas); Refrigerating counters; Refrigerating installations; Refrigerating receptacles; Refrigerating rooms; Refrigeration installations; Refrigeration units; Refrigerators; Milk coolers; Milk cooling installations

    Trade mark number:   1916373

    Trade Mark:   kenner

    Filing / Priority Date:  10 April 2018

    Goods/Services:  

    Class 11: Beverage cooling apparatus; Beverage-cooling apparatus; Beverage refrigerators for use in automobiles; Domestic appliances for producing ice; Domestic appliances for refrigerating; Domestic machines for making ice; Electric cool boxes; Electric cooling apparatus for use with milking installations; Food display units (refrigerated or heated); Food servery units (refrigerated or heated); Refrigerated cabinets for the display of food; Refrigerated cabinets for the storage of food; Refrigerators for foodstuffs; Freezer display units; Freezer installations; Freezer storage units; Freezers; Freezing apparatus; Freezing cupboards; Freezing installations; Fridge-freezers; Ice dispensing apparatus; Ice machines; Ice machines and apparatus; Ice makers; Ice making apparatus; Ice making machines; Ice producing apparatus; Ice storage apparatus; Installations for refrigerating; Refrigerating apparatus; Refrigerating apparatus for beverages; Refrigerating appliances; Refrigerating cabinets; Refrigerating chambers; Refrigerating containers (gas); Refrigerating counters; Refrigerating enclosures for freezing; Refrigerating installations; Refrigerating or freezing apparatus for cool rooms; Refrigerating receptacles; Refrigerating rooms; Meat chests (refrigerated); Meat safes (refrigerated); Refrigerated boxes; Refrigerated cabinets; Refrigerated cabinets for the display of drink; Refrigerated cabinets for the storage of drink; Refrigerated counters; Refrigerated display cases; Refrigerated display units; Refrigerated holding and display tanks for live fish and seafood; Refrigerated merchandising apparatus; Milk coolers; Milk cooling installations; Portable refrigerating boxes (electric); Refrigerators; Refrigerated units; Refrigeration units