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| The Elvis Cutaway |
Shotover is a company that offers cliff jumping experiences and the Elvis Cutaway is a particular jump style, described as "The king of all head rushes." (See http://www.canyonswing.co.nz/ and use the jumpstyles arrows to find The Elvis Cutaway.)
The Intellectual Property Office of New Zealand ruled against Elvis Presley Enterprises and allowed the trademark to be registered.
You have to ask yourself, why would Elvis Presley Enterprises be so concerned with challenging this trademark, in New Zealand, against a cliff jumping experience company? Don't they have better things to do with Elvis' legacy?
Not Your Average Backyard Variety Swing Limited v Elvis Presley Enterprises, Inc [2009] NZIPOTM 9 (20 April 2009)
Last Updated: 22 April 2009IN THE INTELLECTUAL T9/2009
PROPERTY OFFICE OF
NEW ZEALAND
IN THE MATTER of the Trade Marks Act 2002
AND
IN THE MATTER of trade mark application no 753068
elvis cutaway in class 41 in the name of NOT YOUR AVERAGE BACKYARD VARIETY SWING LIMITED
Applicant
AND
IN THE MATTER of opposition by ELVIS PRESLEY ENTERPRISES, INC
Opponent
Decided on the papers filed
Background
[1] The Trade Marks Act 2002 (“Act”) applies to this proceeding
[2] On 11 August 2006 Not Your Average Backyard Variety Swing Limited (“applicant”) filed application no. 753068 for registration of the trade mark elvis cutaway (“applicant’s mark”). The applicant claimed that “the mark is being used or proposed to be used, by the applicant or with his/or her consent in relation to the goods/services.”
[3] The applicant’s mark is a word mark which consists of the words “elvis cutaway”
[4] Application no. 753068 is in respect of “canyon swing services in class 41.
[5] The Intellectual Property Office of New Zealand (“IPONZ”) accepted the application on 17 August 2006 and advertised such acceptance on 29 September 2006 in Journal 1527.
[6] On 29 January 2007 Elvis Presley Enterprises, Inc (“opponent”) filed a notice of opposition in respect of application no. 753068.
[7] The applicant filed a counter-statement in respect of application no. 753068 on 28 February 2007.
[8] Neither of the parties requested a hearing of this opposition and neither of them made any submissions in writing or otherwise. As a consequence, this opposition is determined solely on the papers filed with IPONZ. Further, since the opponent has not advised that it is not proceeding on any of the grounds set out in its notice of opposition, I will consider all grounds of opposition set out therein.
Evidence
Opponent’s evidence
[9] In support of its notice of opposition, the opponent filed a statutory declaration made by Michael Andrew Cavanaugh, a Law Clerk employed by Baldwins, the attorneys for the opponent, dated 2 October 2007 (“Cavanaugh declaration”).
Applicant’s evidence
[10] In support of its application, the applicant filed a statutory declaration made by “Elvis” Christopher James Mackay, a former employee of the applicant, dated 30 November 2007 (“Mackay declaration”).
Opponent’s evidence in reply
[11] A statutory declaration made by Shona Elizabeth Russell, a Personal Assistant employed by Baldwins, the attorneys for the opponent, dated 10 March 2008 (“Russell declaration”) was filed by the opponent in reply.
Onus of proof
[12] The opponent has the onus of establishing that there is an awareness of and that it has reputation in its trade mark ELVIS (“opponent’s mark”) for the purpose of section 17(1)(a) of the Act (likely to deceive or cause confusion) and section 25(1)(c) of the Act (well-known mark).
[13] The applicant has the onus of establishing that its mark does not offend against section 17 of the Act i.e. its mark is not likely to deceive or confuse. The applicant also has the overall onus of establishing that its trade mark is eligible for registration.
[14] In each case, the burden of proof is on the balance of probabilities.
Grounds
[15] The opponent’s objections to application for registration of trade mark no. 753068 as set out at length in the notice of opposition, may be summarised as follows:
- use by the applicant of the applicant’s mark in relation to the services listed in the specification would be likely to deceive or cause confusion within the meaning of and contrary to section 17(1)(a) of the Act;
- use by the applicant of the applicant’s mark would be contrary to New Zealand law or otherwise disentitled to protection in any court within the meaning of, and contrary to, section 17(1)(b) of the Act as such use would be misleading and deceptive or likely to mislead or deceive and would also amount to false representations as to the existence of a right and that the applicant’s services have a particular quality or history contrary to any or all of sections 9, 10, 13 and 16 of the Fair Trading Act 1986;
- use by the applicant of the applicant’s mark would be contrary to New Zealand law or otherwise disentitled to protection in any court within the meaning of, and contrary to, section 17(1)(b) of the Act as such use would amount to passing off at common law;
- the applicant’s mark has been applied for in bad faith because given the extensive reputation in New Zealand and throughout the world of the opponent’s mark, the applicant is aware of the opponent’s mark and, as such, registration of the applicant’s mark would be contrary to section 17(2) of the Act;
- the opponent’s mark is well-known in New Zealand and accordingly registration of the applicant’s mark would be contrary to section 25(1) (c) of the Act and would be likely to prejudice the interests of the opponent.
- the applicant is not the owner of the applicant’s mark and accordingly the applicant’s mark is not registrable pursuant to section 32(1) of the Act.
Section 17(1)(a) of the Act (likely to deceive or cause confusion)
[17] Section 17(1)(a) of the Act provides:-
“Absolute grounds for not registering trade mark: general
(1) The Commissioner must not register as a trade mark or part of a trade mark any matter:
(a) the use of which would be likely to deceive or cause confusion; or...”
[18] In order to invoke the provisions of section 17(1)(a) of the Act, the opponent must first establish that, at the relevant date, it had reputation in and there was awareness of the opponent’s mark in New Zealand and, as a consequence, there is the possibility that the use of the applicant’s mark would be likely to deceive or cause confusion - see Pioneer Hi-Bred at pages 62 and 63.
[19] In this context, reputation means awareness or cognisance or knowledge of the opponent’s mark in New Zealand - see Pioneer Hi-Bred at page 63.
[20] Not any reputation will suffice. The opponent's reputation in New Zealand must be sufficiently substantial that there is a possibility that the services which the applicant’s mark covers would deceive or cause confusion. In Pioneer Hi-Bred at page 62Richardson J. held:-
"While the onus of establishing absence of a likelihood to deceive or cause confusion was on the applicant for registration it was necessary for the opponent to establish a sufficiently substantial reputation in the New Zealand market to lead to the possibility that the goods covered by the proposed trademark would be identified with the opponent" [ emphasis added].Opponent's Reputation
[21] In determining whether the opponent has the requisite reputation "the first step is to identify the relevant New Zealand market or markets in which the services covered by the mark applied for might be expected to be sold," - Pioneer Hi-Bred at page 74.
[22] The next step is to determine whether a substantial number of persons in that market had awareness or cognisance or knowledge of the opponent's mark. This is necessary as unless a substantial number of persons are aware of the mark the opponent will not have a sufficiently substantial reputation to lead to the possibility that consumers would identify the applicant’s services with its services.
[23] In order to determine the relevant market it is necessary to identify the prospective purchasers of the services to which the mark applies - Pioneer Hi-Bred at page 61.
Relevant Market
[24] The services for which the applicant seeks registration of its trade mark are “canyon swing services” being services in class 41.
[25] In this case it seems to me that the market consists of’ purchasers of the services mentioned in the specification i.e. “canyon swing services”. This is the general public being tourists seeking to utilise such services. In my opinion, these services do not constitute specialist services or a specialist market. As the market consists of the general public, I am entitled to rely on my own experience.
Reputation in New Zealand
[26] The Cavanaugh declaration contains a significant amount of information, apparently obtained from the internet, that seeks to establish that Elvis Aaron Presley was an American singer, entertainer and actor, who was one of the most famous entertainers in the world and whose records and movies have maintained a significant degree of popularity throughout the world both during his lifetime and after his death.
[27] In addition, in paragraph 33 of the Cavanaugh declaration, the declarant states:
‘Elvis is also widely known as “the King” because of his unofficial title of the King of Rock’n’Roll. References to “the King” are often taken as being references to Elvis”[28] However, the language of the Cavanaugh declaration addresses the biography of Elvis in the USA and his reputation in that country and internationally as a singer, entertainer and actor. It does not specifically seek to address reputation in New Zealand.
[29] As to the international nature of Elvis’ reputation referred to in paragraph [26], the references are to his international reputation generally and not to his reputation in any country or countries and in particular not in New Zealand notwithstanding that it might be argued that “international reputation” includes New Zealand. For the purpose of this opposition and in the absence of evidence to the contrary, I do not accept such an argument.
[30] Whilst it is not binding in New Zealand, I gain some assistance from a decision in Australia of a Delegate of the Registrar of Trade Marks in Opposition by Elvis Presley Enterprises Inc to registration of trade mark application 1100952 (36)ElvisFINANCE 2008 ATMO 103 (“ElvisFINANCE”). It seems to me that ElvisFINANCE is somewhat similar to the present opposition even so far as the identity opponent is concerned. However unlike the present case a hearing was held and submissions were made by the parties.
[31] In that case the Delegate noted:
“The opponent contends that the name “Elvis” is exclusively associated with the late Elvis Presley, such that use of the name in the applicant’s trade mark will inevitably carry the clear connotation that the financial services have earned the endorsement or support of Elvis Presley and connotation of endorsement by the opponent.
The opponent accepted that “without more, merely invoking a reference to a deceased celebrity cannot deceive or confuse”: Executors of the Estate of Diana, Princess of Wales (Deceased) v Masterson (2001) 52 IPR 264 (“Masterson”) at 272 [this was in respect of an application to register DIANA’S LEGACY IN ROSES]; however, it was submitted that a reference to Elvis would inevitably be assumed to be a reference to Elvis Presley because he was such a well known and loved public figure, whose name was often used as an endorsement on an incredibly broad range of goods and services. As a result, the presence of the word “Elvis” in the trade mark would be likely to confuse or deceive.
The opponent relied very much on McCorquodale v Masterson (2004) 63 IPR 582 [2004] FCA 1247 (“McCorquodale”), a successful appeal from Masterson, above, to support its submission that it is common and expected that when the name of a famous person is used commercially, it will be seen as an endorsement. Indeed, the opponent saw its case as stronger than that of the estate of the late princess (sic) of Wales, since Elvis Presley has been associated with a large number of commercial endorsements, whereas the Princess had not.
........
Whilst it is very possible that the use of the word “Elvis” in the application would cause some people to think of the late American singer, as Kenny J said in McCorquodale at paragraph 33, “[T]he question is whether, because of this connotation, the respondent’s proposed mark is likely to deceive or cause confusion”. Justice Kenny went on to discuss the fact that there was a large amount of evidence in respect of the Princess of Wales and roses to establish that question.”[32] There is no evidence before me that supports a contention (which I believe the opponent seeks to infer) that use of the word “elvis” in trade mark application no. 753068 would cause some people to think of the late Elvis Presley when purchasing canyon swing services of the applicant.
[33] The mark “ELVIS” is a proper noun which may be seen as describing a characteristic of the services in respect of which the trade mark is said to be used namely an origin or connection in the course of trade. Indeed, and as declared in the Mackay declaration, “Elvis” is a nickname used by the inventor of the jump called the Elvis Cutaway which is used by the applicant in the canyon swing industry. As set out in the Mackay declaration, the aforesaid inventor has been using the nickname “Elvis” for a number of years and is well known in the relevant market by that name.
[34] In the Mackay declaration it is stated that so far as the declarant is concerned and to the best of his knowledge, it has never been suggested that his nickname Elvis, or his use of it, has been or is in anyway seen as reference to a connection or a relationship with the late Elvis Presley or with the opponent.
[35] There is no evidence before me that demonstrates that the opponent has ever used the word ELVIS in New Zealand in the relevant market or at all.
[36] The opponent seeks to establish its reputation in the opponent’s mark in the Cavanaugh declaration. This declaration contains assertions as to the reputation of the late Elvis Presley internationally and by implication, in New Zealand based on research into the history of Elvis Presley carried out by the declarant. However, there is no direct evidence that goes to reputation in New Zealand. A great deal of emphasis seems to be placed on the international reputation of Elvis rather than on his reputation in New Zealand in respect of which there is no direct evidence before me. It is the latter that is relevant to this proceeding whilst the former is not relevant except insofar as it may bear on the reputation in New Zealand.
[37] Whilst the evidence before me may be suggestive of reputation in New Zealand it is not compelling evidence thereof.
[38] However, in Pioneer Hi-Bred at page 62 Richardson J. said:
“For a mark to offend against s. 16 it is not necessary to prove that there is a commercial probability of deception leading to a passing off or infringement action. Detriment or financial loss to an opponent need not be established. It is sufficient if the result of the registration of the mark will be that persons to whom the mark is addressed are likely to be deceived or confused. “[39] In other words, the reputation required for the purposes of section 17(1)(a) is less than that required to support an action in passing off or an action under the provisions of the Fair Trading Act.
[40] In my opinion, the evidence before me does not establish a connection between the late Elvis Presley and the canyon swing services offered by the applicant. The use by the applicant of the word “Elvis” next to “cutaway” is not enough to be likely to give rise to deception or confusion.
[41] I have carefully considered the evidence filed on behalf of the opponent. Having regard thereto and to the above factors, I am not satisfied that the opponent has established a reputation and awareness of its trade marks in New Zealand in the relevant market which it is required to do as a pre-requisite to reliance on section 17(1)(a) of the Act.
[42] It follows that I do not consider that the opponent has established a level of reputation and goodwill sufficient to support its allegations of passing off and/or breaches of the Fair Trading Act 1986 as set out in its notice of opposition.
Conclusion – section 17(1)(a)
[43] The opponent has failed to establish a reputation and awareness of its trade marks in New Zealand.
[44] The opponent is unsuccessful on this ground of opposition.
Section 17(1)(b)(i) of the Act (contrary to law or otherwise disentitled to protection in any court)
[45] Section 17(1)(b)(i) of the Act provides:-
“Absolute grounds for not registering trade mark: general
(1) The Commissioner must not register as a trade mark or part of a trade mark any matter -
(a) ...
(b) the use of which is contrary to New Zealand law or would otherwise be disentitled to protection in any court; “
[46] Under this ground of opposition, the opponent relied on –
- the tort of passing off - paragraph 3 of the notice of opposition;
- sections 9, 10, 13 and 16 of the Fair Trading Act 1986 – paragraph 2 of the notice of opposition; and
“First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying "get-up" (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. ... Third, he must demonstrate that he suffers or ... that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff.”[48] In relation to passing off, inter alia –
- A plaintiff will have to demonstrate that, through use in trade, its name has become known throughout the country or in a particular locality usually through sales and advertising.
- The plaintiff must show, to succeed in a passing off action, damage or the likelihood of damage to its business.
[49] As I have noted earlier in paragraph [42], I do not consider that the opponent has established a level of reputation and goodwill sufficient to support its allegations of passing off as set out in its notice of opposition.
[50] Turning now to the opponent’s claims under the Fair Trading Act, in paragraph 2 of its notice of opposition, it was alleged:
“2.1 Use of the Applicant’s Mark is contrary to New Zealand law within the meaning of section 17(1)(b) because such use would be contrary to any or all of sections 9, 10, 13 and 16 of the Fair Trading Act 1986.
2.2 Use of the Applicant’s Mark by the Applicant would amount to engaging in conduct in the course of trade that is misleading or deceptive or likely to mislead or deceive.
2.3 Use of the Applicant’s Mark by the Applicant in relation to the Applicant’s services will also result in false and/or misleading representations in connection with the supply, (sic) promotion of services. In particular such conduct will falsely or misleadingly represent that:
2.3.1 The Applicant’s services have the Opponent’s sponsorship, approval or endorsement; and/or
2.3.2 The Applicant has the Opponent’s sponsorship, approval, endorsement or is affiliated with the Opponent.
2.4 Such use is likely to cause damage to the business and goodwill of the Opponent including:
2.4.1 Damage to goodwill and reputation through mistaken associations; and
2.4.2 Erosion of the distinctiveness of the Opponent’s Mark through dilution of goodwill.
[51] Section 9 of the Fair Trading Act 1986 states:
9. Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
[52] Section 10 of the Fair Trading Act refers to misleading conduct in relation to goods and is not considered relevant in this case as the applicant’s mark is in relation to services.
[53] So far as is relevant, section 13 of the Fair Trading Act states:
13. False or misleading representations
No person shall, in trade, in connection with the supply or possible supply of goods or services or with the promotion by any means of the supply or use of goods or services,—(a) ...; or
(b) ...; or
(c) ...; or
(d) ...; or
(e) make a false or misleading representation that goods or services have any sponsorship, approval, endorsement... or
(f) make a false or misleading representation that a person has any sponsorship, approval, endorsement, or affiliation; or
[54] So far as is relevant, section 16 of the Fair Trading Act states:
16 Certain conduct in relation to trade marks prohibited
(a) ...; or
(b) ...; or
(c) Falsely use in relation to the provision of services any trade mark or sign so nearly resembling a trade mark as to be likely to mislead or deceive.
(2) For the purposes of this section a person shall be deemed to forge a trade mark if that person—
a) Without the consent of the proprietor of the trade mark, makes that trade mark or a sign so nearly resembling that trade mark as to be likely to mislead or deceive; or
(b) ...
[55] The terms “misleading” and “deceptive” are not defined in the Fair Trading Act. The leading principles that have emerged from the application of those terms in various cases were summarised in the Australian decision in Chase Manhattan Overseas Corporation v Chase Corporation Ltd (1986) 63 ALR 345 (FCA), which was approved by the New Zealand Court of Appeal in Taylor Bros Limited v Taylor Group Limited [1988] 2 NZLR 1 at 39 (CA). These leading principles are:
(a) Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility, regardless of whether it is less or more than fifty per cent.
(b) The issue as to whether conduct is, or is likely to be, misleading or deceptive is to be addressed objectively by the Court in respect of the relevant sections of the public. This assessment should refer to all who come within the given section of the public, including all levels of gullibility, intelligence and education, both sexes, and all ages and occupations.
[56] As mentioned above in paragraph [42], I do not consider that the opponent has established a level of reputation and goodwill sufficient to support its allegations of breaches of the Fair Trading Act 1986.(c) Proof of confusion that may not be sufficient to prove misleading or deceptive conduct, but evidence of confusion may indicate misleading or deceptive conduct. The line between conduct that causes a state of wonder or doubt about the origin of services and conduct that is misleading can be fine.
[57] Nor has the opponent adduced evidence sufficient to show that use of the applicant’s mark by the applicant would be, or would be likely to result in conduct that is, misleading or deceptive.
Conclusion – section 17(1)(b)
[58] The opponent is unsuccessful on this ground of opposition
Section 17(2) of the Act (application in made in bad faith)
[59] Section 17(2) of the Act provides:
- Absolute grounds for not registering trade mark: general
(2) The Commissioner must not register a trade mark if the application is made in bad faith.
[60] The onus of proving that trade mark application no. 753068 was made in bad faith lies with the opponent. The evidentiary test is the balance of probabilities.
[61] The law applicable to applications made in bad faith is as follows:
(1) there is no definition of bad faith in the Act;
(2) bad faith is not confined to dishonesty and may be demonstrated by evidence of conduct falling short of reasonable standards of commercial behaviour;
(3) when considering the question of whether an application to register a trade mark is made in bad faith, all the circumstances will be relevant;
(4) a combined test for determining bad faith is appropriate. The Commissioner must decide whether the knowledge of the applicant (a subjective element) was such that its decision to apply for registration would be regarded as being in bad faith by persons adopting proper standards (an objective element);
(5) an allegation of bad faith should not be upheld unless it is distinctly proved and this will rarely be possible by a process of inference.[62] I do not consider that the evidence before me in this proceeding supports the a contention that the opponent has extensive reputation and goodwill in the opponent’s mark sufficient for the purposes of successfully alleging that application no. 753068 was made in bad faith. Nor is there any evidence before me that distinctly proves the allegation of bad faith.
Conclusion – section 17(2)
[63] The opponent is unsuccessful on this ground of opposition.
Section 25(1)(c) of the Act (likely to deceive or cause confusion: well known mark)
[64] Section 25(1)(c) of the Act provides –
“25 Registrability of identical or similar trade mark
(1) The Commissioner must not register a trade mark (trade mark A) in respect of any goods or services if –
(a) ....
(b) ....
(c) It is, or an essential element of it is, identical or similar to , or a translation of, a trade mark that is well known in New Zealand (trade mark D), whether through advertising or otherwise, in respect of those goods or services or similar goods or services or any other goods or services if the use of trade mark A would be taken as indicating a connection in the course of trade between those other goods or services and the owner of trade mark D, and would be likely to prejudice the interests of the owner.”[65] In my opinion the opponent has failed to show that its mark was well known in New Zealand. The evidence filed by the opponent was not strong and was not independent evidence of reputation which I consider necessary to establish that a trade mark or trade marks are well known in New Zealand.
Conclusion – section 25 (1)(c)
[66] The opponent is unsuccessful on this ground of opposition.
Applicant not the owner of the applicant’s trade mark
[67] I turn now to the opponent’s claim that the applicant is not the owner of the applicant’s mark.
[68] In paragraph 7 of the notice of opposition filed herein, the opponent asserts as follows:
“7 The Applicant is not the owner of the Applicant’s Mark and accordingly the Applicant’s mark is not registrable pursuant to section 32(1).
7.1 The Applicant’s Mark is substantially identical to the Opponent’s Mark;
7.2 The Opponent has prior use and/or has made prior assertions of proprietorship;
7.3 The Opponent is using or has a sufficiently definite intention to use the Opponent’s Mark.
[69] At common law the proprietor of a mark was the first person to use the mark in New Zealand see Pioneer Hi-Bred and Philip Morris (NZ) v Liggett & Myers Tobacco (1978) NZIPR 195.
[70] In order to validly claim proprietorship of a trade mark, a trade mark applicant must, in a sense, be the "author" of the mark. Authorship requires that no one else has acquired a prior right through use of the trade mark in New Zealand – Re Application by Saturno’s Norwood Hotel Pty Ltd v Potter Family Hotels Pty Ltd (1988) I.P.R. 579.
[71] I note the following points:
- Under the 1953 Trade Marks Act, the issue of proprietorship arose under section 26(1).
- There were three requirements for a legitimate claim to proprietorship as referred to in Newnham v Table for Six(1996) Limited (1998) 44 IPR 269 namely (a) there is no prior use or prior assertion of proprietorship; (b) the applicant is using or has a sufficiently definite intention to use the mark; and (c) there is no fraud or breach of duty involved.
- The previous authorities under section 26 assumed that this section was concerned with competing claims to ownership of the same mark or substantially identical marks that were of a necessity, incompatible
“owner, -
(a) in relation to a registered trade mark that is not a certification trade mark or a collective trade mark, means the person in whose name the trade mark is registered; and
(b) ...; and
(c) ...; and
(d) in relation to an unregistered trade mark, means the person who owns all of the rights in the mark”[73] Clearly, the person who asserts that he is the proprietor of a trade mark has the onus of proof that he is “the person who owns all of the rights in the mark".
[74] In relation to the applicant’s mark, in the Mackay declaration the declarant sets out details of his invention of the “elvis cutaway” jump style during his employment by the applicant and the authorship and use by the applicant of the applicant’s mark in relation to canyon swing services offered by the applicant.
[75] The opponent asserts, inter alia, that the applicant’s mark is substantially identical to the opponent’s mark; however there is no evidence before me that supports this assertion
[76] The opponent also asserts that it is the proprietor of the opponent’s mark. However, there is no evidence before me that addresses the issue of proprietorship of the opponent’s trade marks or the opponent’s intention to use the same.
Conclusion
[77] The opponent is unsuccessful on this ground of opposition
Conclusion
[78] None of the grounds of opposition have been established. The opponent is unsuccessful on all grounds.
[79] Accordingly I that direct that trade mark application number 753068 be registered.
Costs
[80] The applicant is entitled to costs in accordance with the IPONZ scale, which I set at $1600.
Dated this 20th day of April 2009
_________________________________
B. F. Jones
Assistant Commissioner of Trade Marks
Applicant represented itself
Baldwins for the Opponent
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