Westchester Media Company, L.P v Australian Polo Magazine Pty Ltd

[2000] ATMO 100

TRADE MARKS ACT 1995

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

Re:Opposition by Westchester Media Company, L.P. to registration of trade mark application number 751447(16) - POLO MAGAZINE - filed in the name of Australian Polo Magazine Pty Ltd.

Background
The above-identified application number 751447 was filed on 19 December 1997 by Australian Polo Magazine Pty Ltd (the applicant) to register the trade mark, the representation shown below:

 

Originally, the applicant sought registration of the mark for goods in classes 16 and 25.  Subsequent to an amendment of the application by deleting the claim in respect of class 25,  the goods now read: "A periodical/magazine relating to polo", in class 16.   The application was accepted and the acceptance advertised in the Australian Trade Marks Journal of 30 July 1998.  On 27 October 1998, a notice of opposition to registration of the mark was filed by Westchester Media Company, L.P. (the opponent).   The grounds in the notice of opposition are based on sections 41, 42, 44, 59, 60 and what appears to be section 43 for the reasons that will be stated when dealing with that section.  At the hearing, the issues that were addressed by the opponent concerned all the grounds listed in the notice of opposition. 

The hearing on the opposition was held in Sydney.  Ms Annette Freeman of Spruson & Ferguson, patent and trade mark attorneys of Sydney, appeared for the opponent.  Mr William Haseler, a solicitor of Brisbane, represented the applicant by telephone.  Before the hearing, on behalf of the applicant, Mr Haseler had transmitted copies of written submissions to Ms Freeman  and myself.   

The evidence
The evidence in support is a statutory declaration, with exhibits, by John B. Goodman of Navasota Holding Company, L.L.C., a general partner of the opponent company.  Mr Goodman recounts the history of a POLO magazine, published in the United States of America at least as early as 1976 and purchased by his company in 1997.  It is obtainable by means of a subscription or from various outlets, such as newsagents.  In view of the international nature of the game of polo, many of its subscribers are resident outside the United States.  The opponent's predecessor commenced supplying copies of the magazine to subscribers in Australia at least as early as 1988.  An exhibit to the declaration lists names and addresses of subscribers of the magazine, resident in Australia, with dates when each subscription commenced and ceased.  In the body of the declaration, Mr Goodman provides names and addresses of subscribers in 1988.   He gives the number of subscribers in Australia who received the magazine during the period from 1988 to 1998.  In 1998, in addition to the subscriptions, the opponent commenced newsstand sales of the magazine in Australia, in the first year selling 500 copies of the magazine.  A further exhibit shows copies of subscription summaries for the Australian subscribers from 1988 to 1998.  In an exhibited magazine of April 1988 is included an article concerning polo ponies in Australia.  Further exhibits feature a copy of the magazine containing an article on Mr Kerry Packer and copy of a press release, as well as a newspaper article in connection with that issue.  Mr Goodman indicates the worldwide circulation figures for the magazine covering the years from 1988 to 1997 and an approximate value of worldwide sales for 1998.

The applicant did not serve and file any evidence in answer.

Submissions and discussion
In submitting that the applicant's mark is not capable of distinguishing, Ms Freeman said that, to achieve registration of a fairly non-distinctive logo format, such as the applicant's mark, for magazines about polo, the applicant would need to show a strong reputation in such goods in the marketplace.  A copy of the official file on the application, which the opponent had obtained under the Freedom of Information Act ('FOIA') showed that, at best, the mark had been used for under three years. Although the opponent had not been able to have access to the circulation or sales figures of the magazine, it was obvious that a mere three year use of such a specialized magazine directed at a niche market was insufficient for the mark to be held capable of distinguishing the applicant's goods. Moreover, Ms Freeman said, the evidence on the official file did not show use of the mark as filed. She submitted further that use of the opposed mark was contrary to law, as it trespassed upon the reputation of the opponent in its own trade mark POLO, as had been set out in the opponent's evidence. As both parties were interested in a magazine publication relating to the sport of polo, and the marks were clearly substantially identical and deceptively similar, use of the applicant's mark was likely to deceive or cause confusion, having regard to the long prior use of the opponent's similar mark on the same goods. In particular, consumers might believe that the Australian publication was somehow affiliated with, or licensed by, the publication in the United States. The opponent's mark of application number 776607 had a later priority date than the opposed mark, Ms Freeman said, but the opponent's evidence demonstrated prior use of that mark. As the opponent had first use of its substantially identical mark in Australia, in relation to the same goods, from at least as early as 1988, the applicant could not be the proprietor of the mark, Ms Freeman submitted, pointing out that no evidence had been served to rebut the opponent's claim. Relying on the applicant's evidence obtained under the FOIA, Ms Freeman called into question the applicant's intention to use the mark on the goods applied for, as the mark in use differed from that which had been filed by the applicant. Concerning the awareness of the opponent's mark, Ms Freeman submitted that a reputation had been growing in Australia since 1988. The evidence showed that the opponent's mark was known internationally, and that it was a respected publication in its niche area; the magazine had subscribers throughout the world and many Australians would have bought the publication over the years. In concluding the primary submissions, Ms Freeman requested costs on behalf of the opponent.

Ms Freeman also commented on Mr Haseler's written submissions, saying that much of the material included in those submissions related to factual matters which had not been put in evidence, hence denying the opponent an opportunity to reply to that evidence. Ms Freeman stated that she would also object to any submissions being made in relation to the material filed by the applicant during the course of examination, arguing that, although the official file had been obtained by the opponent under the FOIA, that material, likewise, had not been served on the opponent as evidence. Subsequently, I advised the parties concerned that the material referred to by Ms Freeman ought to have been served and filed as evidence in answer by the applicant to enable the opponent sufficient time for preparing a reply. In the present circumstances, where this procedure had not been followed, I had no choice but to rule that such material could not be admitted in these proceedings, hence, for the purposes of my decision, any reference to the said material would be disregarded.

Commencing the submissions on behalf of the applicant, Mr Haseler said that the main thrust of the arguments would concentrate on the applicant being the owner of the trade mark and the only entity that had used the mark in Australia before the opponent started selling its magazine in newsstands.   Relying on Rothmans Ltd v W.D. and H.O. Wills Australia Ltd (1955) 92 CLR 131 and 94 CLR 182 as authorities, Mr Haseler argued that the sending of the opponent's magazines from America by subscription to Australia did not amount to use of a trade mark. The opponent's evidence showed that all of the transactions, to which the opponent referred in support of use of the mark in Australia, had actually occurred in the United States of America. The situation in the present case, where the opponent's magazines were sent direct to private individuals in Australia who subscribed to the magazine, making the payment for their subscriptions in the United States, was analogous with the Rothmans case, supra, Mr Haseler submitted.  The goods in that case had been cigarettes ordered by individual persons who sent the money with the order to the supplier in the United States.  As found by Fullagar J, the writing and posting of a letter ordering the goods under the mark for personal use from the owner in the United States did not constitute use of a trade mark in Australia.  The High Court had affirmed Fullagar J's decision.  Likewise, Mr Haseler said, any use of the mark in respect of the opponent's magazines from 1988 to 1998, was use in the course of trade of the mark only in the United States.  It should also be noted, Mr Haseler submitted, that the applicant has proprietary rights in the word POLO, being the owner of the mark POLO DOWN UNDER of registration 363808 - registered since 4 August 1981 -  which was prior in time to what the opponent considered to be first use of its mark in 1988.   Citing Paintmaster Products v Lewis Berger & Sons (Aust) Pty Ltd (1955) 25 AOJP 1915, Mr Haseler said that the fate of the application was to be judged as at the date of that application and therefore would prevail over claims of any subsequent user.  It was the applicant's view that first use of the opponent's mark occurred only once the retail sales of the magazine commenced, which was subsequent to filing of the present application.

Mr Haseler submitted further that, in contrast to the reputation acquired in the three year period of use of the applicant's mark, there was no discernible reputation in the opponent's mark in Australia.  In view of the American flavour of the opponent's magazine, which contained American advertisements and articles, and the manner in which the magazine was obtained from the United States prior to the filing of the present application, it was readily distinguishable from the applicant's magazine, with predominantly Australian content.  In these circumstances, he said, it was unlikely that deception or confusion would arise among polo players in a niche market, where the purchasers would be expected to be perceptive.                           

Is the trade mark capable of distinguishing -  s.41?

Section 41 of the Act provides:

Trade mark not distinguishing applicant's goods or services

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

Note 1:  For applicant and predecessor in title see section 6.

Note 2:  If a predecessor in title had authorised another person to use the trade mark, any authorised use of the trade mark by the other person is taken to be a use of the trade mark by the predecessor in title (see subsection 7(3) and section 8).

(2) 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 (designated goods or services) from the goods or services of other persons.

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

(3) 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, the Registrar 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.

(4) Then, if the Registrar is still unable to decide the question, the following provisions apply.

(5) If the Registrar finds that the trade mark is to some extent inherently adapted to distinguish the designated goods or services from the goods or services of other persons but is unable to decide, on that basis alone, that the trade mark is capable of so  distinguishing the designated goods or services:

(a) the Registrar is to consider whether, because of the combined effect of the following:

(i) the extent to which the trade mark is inherently adapted to distinguish the designated goods or services;
(ii) the use, or intended use, of the trade mark by the applicant;
(iii) any other circumstances;

the trade mark does or will distinguish the designated goods or services as being those of the applicant; and

(b) if the Registrar is then satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken to be capable of distinguishing the applicant's goods or services from the goods or services of other persons; and
(c) if the Registrar is not satisfied that the trade mark does or will so distinguish the designated goods or services—the trade mark is taken not to be capable of distinguishing the applicant's goods or services from the goods or services of other persons.

Note 1:  For goods of a person and services of a person see section 6.

Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

(6) If the Registrar finds that the trade mark is not inherently adapted to distinguish the designated goods or services from the goods or services of other persons, the following provisions apply:

(a) if the applicant establishes that, because of the extent to which the applicant has used the trade mark before the filing date in respect of the application, it does distinguish the designated goods or services as being those of the applicant—the trade mark is taken to be capable of distinguishing the designated goods or services from the goods or services of other persons;
(b) in any other case—the trade mark is taken not to be capable of distinguishing the designated goods or services from the goods or services of other persons.

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

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

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

Note 2:  Use of a trade mark by a predecessor in title of an applicant and an authorised use of a trade mark by another person are each taken to be use of the trade mark by the applicant (see subsections (1) and 7(3) and section 8).

The opponent has maintained that the applicant's mark is not registrable without evidence of it having acquired considerable reputation, as a mark capable of distinguishing in terms of s.41 of the Act.  The applicant has referred to the evidence  before the Trade Marks Office at the examination stage of the application to rebut the opponent's allegations in this regard. 

The tests for determining whether a trade mark is inherently adapted to distinguish the applicant's goods from other persons' goods are set out by Branson J in Blount Inc v The Registrar of Trade Marks (1998) 40 IPR 498 at 504-505.

The mark of the present application consists of two words POLO and MAGAZINE.  While the latter word in the mark is represented in small ordinary print, the word POLO is rendered prominently in sizeable broad upper case letters, all of which are placed close together touching each other.  Given that the goods of this application are a periodical/magazine concerning the game of polo, both words in the mark are  descriptive and non-distinctive.  An attempt has been made by the applicant to depict the word POLO in a somewhat unusual manner by the overly large broad letters, in comparison with the word MAGAZINE, and by connecting those letters.  However, in my opinion, this form of representation of a word is relatively commonplace and is not sufficient to enhance the mark's inherent adaptability to distinguish.  Here I draw here a parallel with the observation of Romer L.J. in Clement et Cie's Trade Mark (1899) 16 RPC 611 at 618:

I desire to say this, that our judgement will in no way, I think, give rise to any idea that it would sanction the registration of words which in themselves would not constitute a proper trade mark, merely because some flourishes were colourably put around them to try and make out a distinctive label - a compound label - when, in fact, what was really sought to be registered and intended to be registered were the words themselves.

I also refer to the remarks of Branson J in the recent case Blount v The Registrar, supra, at 507:

… it seems to me that I must conclude that the particular manner in which the applicant's trade mark presents the word "Oregon" does not give it inherent adaptability to distinguish the designated goods, the word "Oregon" alone lacking such inherent adaptability.  I do not think that the use of upper-case letters, and the oval device surrounding the word "Oregon" are sufficient to take the applicant's trade mark outside of the ambit of the observation set out above of Kitto J in the Bayer Pharma case.  These aspects of the trade mark, whether viewed singly or together, are not, in my view, sufficiently distinctive to give the trade mark a significance other than its ordinary geographic significance or its significance in respect of a particular kind of timber.

I find that the applicant's trade mark is not inherently adapted to distinguish the designated goods from the goods of another person.

Assessing the mark in its entirety, where the second word in the mark is a mere description of the goods concerned, thus reducing any minor degree of originality the manner of representation of the word POLO might possess, I find it to be only to a very small extent inherently adapted to distinguish.

I have perused the evidence filed by the applicant towards overcoming grounds of objection raised by the examiner in terms of s.44 of the Act.  This evidence is informal in nature and primarily addresses the issue concerning honest concurrent use of the mark under the provisions of s.44(3).   Since it has not been put in a declaratory form, in accordance with regulation 21.6, and does not directly deal with the s.41 matter, I cannot give it any weight in assessing registrability of the mark in terms of s.41(5) of the Act.  Had this evidence been filed in the proper form, I would have been in a position, subject to the applicant's consent, to allow the opponent time to consider its contents and to make written  submissions on it, if it so desired.  As the matters stand, however, I have no option but to entirely discount it.   

In view of my above comments, I find the applicant's mark not to be capable of distinguishing its goods from those of other traders' goods.  Accordingly, the ground of opposition in relation to s.41 succeeds.

Use of the trade mark is contrary to law - s.42
In terms of s.42(b), an application for registration of a trade mark must be rejected if use of the mark is found to be contrary to law.

For the provisions of this section to take effect, the applicant's mark would need to breach some piece of legislation.  The opponent has not submitted that the applicant's mark offends the provisions of any particular legislation, nor has it produced evidence to the effect that use of the mark is illegal.   As I see no reason why the mark should be precluded from registration as one which is contrary to law, I dismiss the opponent's ground in relation to this section of the Act. 

S.43 - trade mark likely to deceive or cause confusion
The third ground in the notice of opposition is expressed in rather broad terms:

(c)The use of the opposed trade mark would be likely to deceive or   cause confusion. 

Such wording could indicate grounds of opposition under either the provisions of s.43 or s.60 of the Act.  As the evidence in support does not deal with the s.43 issue, nor was it directly addressed in the opponent's submissions with reference to that particular section, having regard to the separate ground relating to s.60 which has been included in the notice of opposition, I have taken the stated ground to involve s.43. 

The provisions of s.43 apply to marks which contain a connotation and, because of the connotation the mark has, or any sign appearing in the mark, its use in relation to the designated goods or services would be likely to deceive or cause deception.  Given the opponent's submissions in relation to this ground, which were based on earlier use of its similar mark on identical goods than use of the mark applied for, it appears that the opponent has overlooked the fact that this section does not concern deliberations of alleged disputes between trade marks.  It would be of assistance to refer to what the hearing officer said of the concept of 'connotation' in Down to Earth (Victoria) Co-operative Society Ltd v Schmidt (1998) 41 IPR 632 at 643-644:

"Connotation" is a new term in trade mark legislation and as such has not yet been interpreted by the courts.  The following are two dictionary definitions which define the ordinary meaning:

Macquarie Dictionary:

1. the act or fact or connoting.  2. That which is connoted; secondary implied or associated meanings (as distinguished from denotation): for example the word "bum" has connotations of vulgarity.

Oxford English Dictionary:

1. The signifying in addition; inclusion of something in the meaning of a word besides what it primarily denotes; implication.

Therefore it can be said that the word connotation refers to that which is implied in a trade mark - in addition to its essential or primary meaning.  A connotation can result from the trade mark as a whole, or can result from a sign contained within the trade mark.  The prominence and context of the potentially deceptive or confusing element in the trade mark is important in deciding whether the trade mark is likely to deceive or cause confusion.  Considerations under s 43 concentrate on the matter within the trade mark that could cause deception or confusion in the mind of the relevant buying public.  For example, deception or confusion could arise in regard to the character of the services, or the implied endorsement or licence of services by a person or organisation.

Pursuant to s.43 then, considerations focus on the inherent nature of the mark itself in order to determine whether deception or confusion could arise through use of the mark which possesses some connotation.  The Trade Marks Office Draft Manual of Practice and Procedure, Part 29 at 1.4, sets out some considerations in this regard:

·     Character of the goods and/or services including their composition, nature or other properties

·     Quality or quantity of the goods and/or services

·     Geographical origin of the goods and/or services

·     Intended use or purpose of the goods and/or services

·     The endorsement or licence of a product or service by as person or organisation.

Applying these guidelines to the mark in suit, in view of the presence of the descriptive nature of the word POLO, there exists a strong possibility that the purchasers, on seeing the mark in the context of the applicant's goods, would expect the magazines to contain material on the game of polo.  If the magazines were not of such content, the mark could be regarded as misleading the purchasing public.  In the present application, any likelihood of deception in this sense has been removed by the goods being suitably qualified as containing subject matter on the sport of polo, therefore I do not believe deception or confusion is likely to result, within the meaning of s.43 of the Act, if the opposed mark is used in respect of magazines. 

Accordingly, I find no justification for the ground of opposing the applicant's mark in terms of s.43.

S.44 - substantially identical or similar trade marks
Under the terms of s.44, the applicant's mark would be prevented registration if its mark was substantially identical with, or deceptively similar to, a mark registered or pending registration,  by another person in respect of similar goods or closely related services, and that mark or those marks of the other person had an earlier priority date for registration than the subject application's mark, in respect of similar goods or closely related services.  The filing date of the subject application is 19 December 1997. 

The opponent has identified its word mark POLO of application 776607 in respect of a "magazine on the subject of polo and lifestyle related to polo", which was filed on 26 October 1998.  As the filing date of the opponent's application is later than the applicant's, it is clear that the provisions of s.44 do not apply in the present case.  It follows that the opponent fails on the s.44 ground of opposition. 

In making its submissions in relation to s.44, the opponent challenged the applicant's claim to proprietorship of the opposed mark.  I must point out that the notice of opposition does not include a ground concerning the question of proprietorship of the mark based on s.58.  Consequently, I am unable to consider the opponent's submissions in this regard.      

S.59 - applicant not intending to use trade mark
Under s.59, registration of a trade mark may be opposed on the ground that the applicant does not intend to use the mark, or authorise its use, in Australia, or that it does not intend to assign the mark to a body corporate to be used by it in Australia, in relation to the relevant goods or services.

The onus rests on the opponent to substantiate any alleged lack of intention as to use of the mark specified in s.59. Based on the evidence of use of the applicant's mark, which had been requested by the opponent under the FOIA, the opponent asserts that the evidence fails to show use of the mark in the format filed. For the reasons stated earlier, I cannot give any regard to that evidence. In the absence of any material before me showing that the applicant's claim in terms of s.27(1)(b) is false, I must accept that the applicant, at the time of making the application, did use the mark, or had the intention to use it, as the mark was filed. I therefore dismiss the ground based on s.59.

S.60 - trade mark similar to trade mark that has acquired a reputation in Australia
S.60 provides that -

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.

Section 10 defines 'deceptively similar' as

10.  For the purpose of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion.

In terms of paragraph (a) of this section, I must determine whether the applicant's mark is either substantially identical with, or deceptively similar to, a trade mark that has built up a reputation in Australia before the date of the present application - 19 December 1997.  The next step, under paragraph (b), requires me to consider whether, in view the reputation connected with that mark, use of the applicant's mark would be likely to deceive or cause confusion.

In the opponent's evidence, the only illustration of the mark in use in respect of the magazine before the relevant period is featured on the cover and inside of the opponent's exhibited magazine of April 1988.  It is a mark consisting of the word POLO, the letters 'P', 'L' and the second letter 'O' rendered in large bold-faced upper case capitals with a device of what appears to be a polo ball representing the first occurrence of the letter 'O'.  The letter 'L' blocks portion of the device, which in turn obscures part of the curve in the letter 'P'.  

The criterion for determining substantial identity of the marks is found in Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd (1961) 109 CLR 407, where Windeyer J stated at 414:

In considering whether the marks are substantially identical 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.

The essential element in the applicant's as well as the opponent's mark is the prominent word POLO which, in both marks, is featured in upper case letters of a considerable size.  It is this element that creates the overall impression of the marks as being almost the same.  In my opinion, neither the additional direct reference to the goods - the word MAGAZINE - appearing in the applicant's mark, nor the shape of a polo ball, which conveniently substitutes the first letter 'O' in the opponent's mark, detracts from the intrinsic nature of these marks, which in both cases, fundamentally, is the word POLO.  I therefore consider these marks to be substantially identical.

The first copies of the opponent's magazine were supplied in Australia in 1988.   Until the year 1998, and therefore before the filing of the present application, the magazines were made available in Australia exclusively by way of a subscription.  Mr Goodman has provided numbers of the subscribers during this period: 34 (1988); 50 (1989); 69 (1990); 91 (1991); 101 (1992); 104 (1993); 97 (1994); 89 (1995); 77 (1996); 68 (1997) and 63 (1998), stating that approximately 10 issues of the magazine were distributed per year.   The subscription rate of the magazines ranged from $24.00 a year in 1988 to $40.00 a year in 1996.  However, no information has been included in the opponent's evidence on the means of promoting and advertising the magazines, or to what extent the mark in respect of the magazines has been publicised in Australia.  Whilst I concede that the opponent's publication is aimed at a group of people with special interest in the game of polo, and I make allowances for the fact that this form of sport is not widely embraced in Australia, I believe it is impossible to deduce, from the opponent's evidence, a reputation in the opponent's mark that is of relevant significance.  Even the highest number of subscribers of the magazine in 1993, which could have included those subscribers who simply wished to renew their subscriptions, is, in my opinion, only moderate.  If the magazine was not promoted in the popular media or sold in the open market, then I can only draw the conclusion that the awareness of the magazine would have been limited even amongst the polo enthusiasts   The mark may have gained a renown internationally, but the opponent has not shown that renown to have extended to Australia to any meaningful degree.  Having thus found, I do not think a real risk exists that, on seeing the applicant's magazines bearing the subject mark, a substantial number of people concerned with the sport of polo (see Kendall Co v. Mulsyn Paint & Chemicals (1963) 109 CLR 300) would be deceived by linking the applicant's magazine with the American publication, as submitted by the opponent.

In view of the above observations, the opponent has failed to establish a case in terms of s.60 of the Act.

Conclusions
From the foregoing, I have found the opponent did not establish the grounds of opposition in relation to sections 42, 43, 44, 59 and 60 argued at the hearing.  It did, however, succeed on the ground based on s.41.  I therefore refuse registration of the present application.    

Costs
The opponent being the successful party in these proceedings is entitled to costs.  I direct that the applicant pay the opponent's costs.

Vija Zars
Hearing Officer

19 September 2000