CARABAO TAWANDANG CO LTD V RED BULL GMBH HC WN CIV-2005-485-1975

CARABAO TAWANDANG CO LTD V RED BULL GMBH HC WN CIV-2005-485-1975 31 August 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2005-485-1975UNDER the Trade Marks Act 2002 IN THE MATTER OF an appeal from the decision of J Walden, Assistant Commissioner of Trade Marks dated 29 August 2005 AND IN THE MATTER OF Trade Mark Application No. 704080 in class 32 BETWEEN CARABAO TAWANDANG COMPANY LIMITED Appellant AND RED BULL GMBH Respondent Hearing: 22 June 2006 Appearances: R Watts and R Batty for Appellant S Wheelden and R Colley for Respondent Judgment: 31 August 2006 In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.00pm on the 31 st day of August 2006.JUDGMENT OF CLIFFORD J Introduction[1] This is an appeal against a decision of the Assistant Commissioner of Trade Marks, Assistant Commissioner Walden, dated 29 August 2005. The Assistant Commissioner upheld objections by the proprietor of various RED BULL trademarks ("the RED BULL marks") under ss 17 and 25 of the Trade Marks Act2002, to the registration in Class 32 of a trademark comprising a horned bovine, or cattle, skull on a predominantly red oval background and the word CARABAO ("the CARABAO mark"). [2] Class 32 covers "beers, mineral and aerated waters and non-alcoholic drinks, fruit drinks and fruit juices; syrups and other preparations for making beverages". [3] RED BULL is a brand of energy drink sold in New Zealand. The CARABAO mark was intended to be used for an energy drink product in New Zealand. [4] An appeal to this Court from a decision of the Assistant Commissioner is by way of rehearing. That is made clear by s 173 of the Trade Marks Act 2002.Factual background[5] Carabao Tawandang Company Limited, a Thai company and the appellant in these proceedings, filed an application on 7 November 2003 to register the CARABAO mark in class 32. [6] CARABAO was established in Thailand in 2001 with the objective of manufacturing and distributing beverages. CARABAO traces its origins to an apparently well known Thai band, The Carabao Band, and to a famous singer in that brand, Mr Yuenyoung Opakui, known as "Ad Carabao". Carabao is, as I understand matters and based on Mr Opakui's deposition in support of registration, the word in Tagalog – the local Philippine language – for water buffalo. Mr Opakui deposed to the origin of his band, the choice of the word CARABAO as its name, the involvement of the CARABAO mark in connection with the band, its subsequent use in connection with a range of beverages in Thailand and elsewhere, and the launch in 2002 of energy drink products bearing the CARABAO brand. [7] Mr Opakui also deposed as to the elements of the CARABAO mark, including what he identified as a water buffalo head logo, the word CARABAOitself, the red sun device which forms the background and the flying red myna bird which appears in the centre of the water buffalo head logo. [8] He deposed further that the Thai word for red is dang and that the appellant's energy drink was known in Thailand as "Carabao Dang". [9] The appellant had yet to market its energy drinks in New Zealand. [10] Red Bull GMBH, an Austrian company and the respondent in these proceedings, filed a notice of opposition on 28 April 2004. [11] Various affidavits filed on behalf of the respondent set out the background to its RED BULL marks. [12] The respondent launched an energy drink containing taurine and caffeine on the Austrian market in 1987 under the name RED BULL, and bearing a distinctive device comprising two red bulls superimposed on a gold circle. In 1992, the RED BULL product was launched in other European countries and then, on a progressive basis, globally. Currently the respondent's RED BULL energy drink is sold in over 100 countries all over Europe, Australia, Africa, the Middle East and the Americas. From its launch in 1987, the respondent's sales volume had grown from 113 million units in 1994 to over 1.2 billion units in 2002. [13] The respondent's RED BULL energy drink was first sold in New Zealand in late 1996. It is sold throughout New Zealand through a diverse range of outlets. [14] Initially, RED BULL was sold in New Zealand solely in cans. However, from April 2002 it became available also in bottles. In February 2003, a sugar free version of the RED BULL energy drink became available in both bottles and cans. [15] The respondent's core trade marks are the word trade mark "RED BULL", and two Red Bulls superimposed on a circle. This device mark is commonly referred to as "the Double Bull device". The respondent has registered some seven marks in all relating to the Double Bull device and the words RED BULL.[16] These marks appear on both the cans and bottle labels of all RED BULL energy drink products and also feature on most associated promotional material. The words RED BULL and the Double Bull device are nearly always printed in red on both the packaging for the energy drink and promotional material. The Double Bull device usually appears superimposed on a bright gold circle. [17] The respondent's deposition evidence was that the concept or idea of a "Bull" is a central part of the respondent's promotional activities, which are not limited to the Double Bull device but include other "Bull" imagery. [18] The respondent's product and brand are well-known in New Zealand. [19] The respondent opposed the appellant's mark on the following grounds: a) Use of the appellant's mark would be likely to deceive or cause confusion, and registration would, therefore, be contrary to s 17(1)(a) of the Act. b) Use of the appellant's mark would be contrary to law, and hence contrary to s 17(1)(b) of the Act, in that: i) Use of the mark by the appellant would amount to passing off; ii) Use of the mark by the appellant would be contrary to the provisions of the Fair Trading Act 1986; and iii) Use of the mark by the appellant may be restrained by the respondent by virtue of the tort of passing off and the provisions of the Fair Trading Act 1986, and therefore, such use would be disentitled to protection. c) The appellant's mark is similar to the registered trade marks belonging to the respondent in respect of the same goods or similar goods and use of the mark by the appellant would be likely to deceiveor cause confusion and registration would, therefore, be contrary to s 25(1)(b) of the Act. d) The appellant's mark is, or an essential element of it is, identical or similar to trade marks belonging to the respondent which are well known in New Zealand in respect of the same goods or similar goods, and use of the mark by the appellant would be likely to deceive or cause confusion and registration would, therefore, be contrary to s 25(1)(c) of the Act.The Assistant Commissioner's decision[20] The Assistant Commissioner considered the extensive affidavit evidence filed in support of the respondent's opposition. This included affidavits from employees of Red Bull GMBH as to the history of the product and the brand, and current (confidential) sales information, evidence from persons working in the beverage and energy drink markets as to the prominence of the product and the brand – including its "must stock" status, market research evidence as to the awareness of the product and the brand, and expert evidence as to the possibility of confusion between the respondent's RED BULL mark and the appellant's CARABAO mark. [21] The Assistant Commissioner also considered the applicant's affidavit evidence comprising Mr Opakui's evidence, and evidence from the applicant's expert as to the ease with which consumers would differentiate between the appellant's CARABAO mark and the respondent's RED BULL marks. [22] The Assistant Commissioner referred to a number of the applicable legal principles, including:• as to the meanings of, and difference between, deception and confusion – Pioneer Hi-Bred Corn Company v Hy-Line Chicks Pty Ltd [1978] 2 NZLR 50;• as to the overall comparison test to be applied – Re Pianotist Co Ltd's Application [1906] RPC 774;• as to the need to focus on the whole of each mark, and not just a side by side comparison, and to allow for imperfect recollection –De Cordova & Ors v Vick Chemical Co (1951) 63 RPC 103 at 106. [23] The Assistant Commissioner recorded the following overall impressions of the appellant's mark and the respondent's marks:• the marks sounded completely different;• the marks contained some significant visual differences – for example, the applicant's trade mark featured what appeared to be a dead steer's head and the opponent's Double Bull Device featured two bulls, which appeared to be charging at each other. The applicant's mark did not use the word "Red", but there was predominant use of the colour red in the mark;• despite their significant visual differences, however, the marks shared the main idea of a male bovine or bull (albeit a dead one in the case of the applicant's mark). It was also significant that the parties' marks made predominant use of the colour red, but this factor was not as significant as the main idea of a male bovine or bull, which the marks had in common;• the word "Carabao", as used in the applicant's mark, was unlikely to be understood by the buying public in New Zealand, who might either ignore the word altogether or who might rely on the image of the dead steer's head to give the word some meaning. If the applicant's mark had been a word mark, the word "Carabao" might have helped to distinguish the applicant's mark from the respondent's marks, but that is not the case here. [24] Other factors were that:• it was likely that the Carabao mark would be used in relation to energy drinks, which meant that the trade channels and the relevant market were likely to be the same;• the respondent's RED BULL energy drink was very well-known in the New Zealand market;• consumers were more likely to rely on their general impression of this type of mark, which would make the shared concepts of a male bovine or bull and the colour red more significant;• the significant visual differences between the parties' marks did not appear to be enough to neutralise the shared concepts of a male bovine or bull and the colour red;• it appeared that even a person in the trade in New Zealand would, if they saw the Carabao mark on an energy drink or any carbonated non-alcoholic drink, assume that there was a connection in trade between the parties. This was significant because a person in the trade is better placed to understand the position than an ordinary member of the buying public. [25] The Assistant Commissioner's overall conclusion was that it was likely that a substantial number of persons in New Zealand were likely to be confused or deceived if the opponent were to use its CARABAO mark in New Zealand in relation to energy drinks or carbonated non-alcoholic drinks. Accordingly, she found that the respondent succeeded on its ground of opposition based on s 17(1)(a) (likely to deceive or cause confusion). [26] As regards s 17(1)(b) (contrary to law), she did not consider it necessary to consider that ground, given the higher threshold of confusion appeared to be required. [27] She then went on to consider the respondent's opposition under ss 25(1)(b) and 25(1)(c). For similar reasons as had applied under s 17(1)(a), she found that the respondent succeeded on those grounds as well. [28] Accordingly she directed that the appellant's application for registration of the CARABAO mark be refused registration.The appeal[29] The appellant and respondent were in broad agreement as to the applicable legal principles. [30] This appeal is by way of rehearing. In such an appeal, the Judge is required to come to his or her own view as to the registerability of the mark. The matter is one of personal impression. Whilst due regard should be given to the general opinion of the Assistant Commissioner, in the end it is a matter for the Judge. To the extent that the determination of likelihood of confusion rests upon a comparison ofthe marks themselves, the appellate Court is in as good a position as the trial Tribunal to come to a conclusion. [31] I was referred, in this context, to NZ Breweries Ltd v Heineken's Bier Browerij Maatschappij NV [1964] NZLR 115 at 117; Effem Foods Ltd v Commissioner of Trade Marks (1996) 7 TCLR 246 per Salmon J at 248; and VB Distributors Ltd v Matsushita Electric Industrial Co Ltd (1999) 9 TCLR 349 per Hammond J at 355. I also note the decision of Gendall J in Austin Nichols & Co Inc v Stichting Lodestar (2005) 11 TCLR 265. [32] The parties were also in broad agreement as to the substantive requirements of ss 17 and 25. [33] Broadly speaking, noting that I do not consider it necessary to restate what are now well established legal principles, it was agreed that the eleven propositions set out in the leading authority in respect of s 16 of the Trade Marks Act 1953,Pioneer Hi-Bred (supra), were to be followed in determining whether use of a mark is likely to deceive or cause confusion under provisions of s 17. [34] The following passage from the decision of Gendall J in Austin, Nichols & Co Inc v Stichting Lodestar (supra) provides a useful summary of the approach to be taken:[11] ... Any comparison with trade marks requires consideration not of actual use but of notional use and in this case of course there has been no actual use of the mark as sought to be registered by the respondent. The test of likely deception or confusion under s17(1) is applied to any fair use of each mark in relation to the goods covered by the registration. Comparison is not of the opponent's mark with that of the respondent when taken side by side, but taking into account imperfect recollection in all the circumstances which the products might be sold. [12] The likelihood of deception or confusion does not require all persons in the market to be likely to be deceived/confused but rather that a significant or considerable section of the public be confused, the significance being the numbers in relation to the market for the particular goods. The classic test In re Pianotist Co Ltd's Application (above) is summarised by Hammond J in VB Distributors Ltd v Matsushita Electric Industrial Co Ltd (1999) 9 TCLR 349 at 358: The third point is that the test for the likelihood of deception was as set out by the Court of Appeal in NZ Breweries Ltd vHeineken's Bier Browerij Maatschappij NV [1964] NZLR 115 (CA). In that case, Turner J at p139 adopted the test enunciated by the English Court of Appeal In Re Pianotist's Co's Application [1906] 23 RPC 774 (CA), at p777 viz: (1) You must take the two words and judge of them both by their look and by their sound; (2) You must consider the goods to which they are to be applied in [sic] the nature and kind of customer who is likely to buy these goods; and (3) You must consider all the surrounding circumstances and what is likely to happen if each of the marks is used in the normal way as a trade mark for the goods of the respective owners of the marks. [13] Regard must be had to the whole mark and not simply visual or phonetic similarities of words and syllables used, the types of goods involved, the circumstances of their use, understanding that often people will not have the opportunity of comparing two marks side by side but will be comparing from imperfect memory. Whilst differences between two marks may be significant it is the similarities which are most significant, whether visual, audible, distinctive or conceptual. To be "deceived" implies the creation of an incorrect belief or mental impression and causing "confusion" may go no further than perplexing or mixing up the minds of the purchasing public; [14] More recently Gault P (as he then was) described the approach to s17(1) in Anheuser-Busch Inc v Budweiser Budvar National Corporation [2003] 1 NZLR 472 (CA) at 488-489: "The comparison of trade marks to ascertain whether there is deceptive or confusing similarity contrary to s 17(1) of the Trade Marks Act so as to establish a ground for removal of registrations is an entirely notional exercise. It contemplates any fair use of the marks in relation to any of the goods covered by the registrations. Opinion evidence that the marks are or are not confusingly similar is of limited value. That is for the Court. Evidence of what actually is occurring in the marketplace reflects particular forms of use and cannot fully answer the question. Evidence of the absence of actual confusion might be explained by reference to particular factors such as additional label features or market circumstances that will not always be present. And at 491: The marks are to be compared as they would be encountered in the usual circumstances of trade. That contemplates wholesale and retail transactions, knowledgeable and uninformed purchasers, purchases. [sic] Purchases will be made by oral requests and on appearance alone. The products will not necessarily be presented side by side. There may be prospective purchasers who have previouslyencountered one product and imperfectly recalling its mark, then see or hear of the other. [75] Guided by the evidence of trade circumstances it is for the Court to determine the likelihood of deception or confusion. It is necessary to consider how the trade marks will be regarded and how they will be pronounced and heard by those to whom they will be presented in the course of trade. The impression or idea conveyed by the marks is important in assessing how they will be recalled.[35] On the basis of that generally shared understanding of relevant legal principles, the appellant and respondent advanced quite differing views as to the correct analysis I should come to of the two marks.Appellant's case[36] The appellant's notice of appeal raised three main points: a) that use of the CARABAO mark was not likely to deceive or cause confusion pursuant to s 17(1)(a); b) that registration of the CARABAO mark would not be contrary to the provisions of s 25(1)(b); and c) that registration of the CARABAO mark would not be contrary to the provisions of s 25(1)(c). [37] In support of those submissions, the appellant's case was that: a) the marks were visually dissimilar; b) there were no phonetic similarities between the marks; and c) the shared concepts between the marks were minimal. [38] The appellant, whilst acknowledging the need to consider the marks as a whole, first invited me to consider the marks based on a simple division of theircomponents to illustrate, in the appellant's submission, what were the clear and overwhelming visual differences between the appellant's CARABAO mark and the respondent's RED BULL marks. a) The respondent's marks comprised a depiction of two bulls charging, together with the word "Red Bull". Neither of those elements were present in the appellant's mark. b) The appellant's mark was not a representation of a bull. Nor was it a representation of a dead steer's head. It was a representation of a front-facing skull of a water buffalo together with a "type of oval" in the colour red. c) As for the idea of the mark, the appellant's submission was that just because two marks convey the same idea that did not mean there was necessary a deceptive resemblance between them (see Cooper Engineering Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 526). d) Furthermore, although there may be some similarity of ideas, the whole, live, moving, charging bulls of the respondent's marks ought to be contrasted to the water buffalo skull of the appellant's mark. Conceptually a skull is clearly different from a live, active animal. [39] The appellant referred me to a number of particular precedents in this context, including Alaska Packers' Association v Crooks & Co (1899) 16 RPC 503; (1901) 18 RPC 129, a case involving a contest between a mark comprising a representation of a red deer's head and one comprising a depiction of a moose's head, the former being held to not infringe the latter. I was also referred to the comparative exercise conducted by the Assistant Commissioner in the case Tammy v Tommy Hilfiger Licensing Inc (2005/04), an unreported decision of 14 December 2004. [40] Overall, the appellant submitted that the concept of the respondent's mark was easy to determine. It was that of Red Bull.[41] Given the unique features of the appellant's mark – the skull, the words "Carabao", the red circle with the yellow outline and other elements taken as a whole, visually, phonetically and conceptually – the appellant's mark connoted something completely different to the idea of Red Bull. [42] It was therefore unlikely that the appellant's mark would be confused with the respondent's marks. [43] In terms of ss 25(1)(b) and (c), the appellant's argument was that the issue was one of similarity, and noted that similarity in this context was bound up with the confusion and deception issue under s 17. It therefore relied on the arguments it had made under s 17 to say that the marks were not similar for ss 25(1)(b) and (c) purposes.Respondent's case[44] In summary, the respondent's argument was that the appellant's CARABAO mark evoked the following core aspects of the respondent's trade marks and get-up: a) The Bull's Head device evoked the concept of a Bull, which it shared with the respondent's Double Bull device, other Device marks used by the respondent and the word mark RED BULL; b) Use of the colour red evoked the concept "RED BULL", particularly when used in combination with the device of a Bull's Head; and c) The gold circle behind the Bull's Head evoked the gold circle upon which the two Bulls of the respondent's mark were superimposed. [45] For the respondent, the argument was that the appellant had erred by focussing too much on a "line-by-line" and "item-by-item" comparison on the two marks. Rather, when taken overall, the Assistant Commissioner was correct in identifying the fundamental similarities as being that "the marks share the main idea of a male bovine or bull. It was also significant that the parties' marks makepredominant use of the colour red." The respondent submitted in particular that it was not correct to assert that red was only a background feature of the appellant's mark, rather it was the major colouring appearing in the mark covering a substantial area. Furthermore, the large red area encircled by the gold band gave the impression of it being superimposed on a gold circle. This element of the appellant's mark bore a strong resemblance to the gold circular device juxtaposed behind the respondent's Double Bull device on the packaging of its Red Bull energy drinks. [46] The respondent relied on the extensive affidavit evidence that had been provided, both as to the history of the development and use of the marks, and also to the various ways in which the RED BULL mark, presented both visually and in terms of its constituent words, was used. [47] The respondent referred to the circumstances in which energy drinks are typically purchased and the characteristics of consumers in the energy drink market who purchase the product in supermarkets, dairies and petrol stations, as well as major liquor outlets. In this context, the key characteristics shared between the appellant's mark and the respondent's mark, which serve in marketing as "signals", provided a clear basis for supporting the Assistant Commissioner's finding. The respondent submitted that consumers who have an overall impression of the branding of Red Bull energy drinks will be likely to associate the appellant's mark with Red Bull products. [48] Despite the differences which are clear in the respective brands compared side-by-side, the dominant concepts are the same. Consumers may be deceived or misled in the belief that the appellant's product is Red Bull energy drink or that the appellant's product is a line extension by the respondent. [49] Based on these striking and substantial similarities and the fact the respondent's marks are extremely well known in New Zealand, the use of the appellant's mark on any non-alcoholic beverage is likely to deceive or cause confusion in that consumers would either consciously or unconsciously associate it with the respondent's products. This effect would be amplified if the mark is used inrelation to an energy drink, which according to the appellant's own evidence is the very product on which the mark is used in its home country, Thailand. [50] In relation to the s 25 ground of opposition, the respondent also argued that the appellant's mark was similar to the respondent's registered trade marks and, assuming fair use of the respective marks in relation to all the goods of the respective specifications, there was a real likelihood of confusion if the appellant's mark were used in relation to any goods of its specification.Discussion[51] I turn now to the comparative exercise called for by this appeal. [52] I agree that the marks, to the extent they incorporate the words "Carabao" and "Red Bull", do sound different. I note however the fact that the word "Carabao" does not have any particular meaning or certain pronunciation in English may reduce the distinction between the marks that might otherwise accompany that difference in sound. [53] I also acknowledge that, taken on an element-by-element basis - as urged on me by the appellant - it is fair to say that there are clear differences between the marks. I note, in particular, that the central visual device in the appellant's mark is what I would describe as a horned cattle skull, whereas the central visual device in the respondent's mark are two charging horned bulls. [54] The law, however, requires me to look at the two marks overall, and to compare the overall impression I am left with. When I do that, I am left with the overall impression that the central concept of the two marks is that of a horned cattle beast or bull, in association with the colour red, both in terms of visual presentation (in the case of both marks) and the use of the word "Red" in the respondent's mark. It is true, that the idea of a bull and that of a horned cattle beast are not the same. They are, however, very similar. When combined with the colour red, as physically appears in both marks and as appears in the words "Red Bull" in the respondent's marks, that similarity becomes even more marked. In terms of that overallimpression, I was not persuaded by the appellant that the fact – as it would appear – that the appellant's mark is based on a skull of a water buffalo, whilst that of the respondent is based on two charging bulls, would in the mind of the purchasing public provide any material distinction between the concepts imparted by the marks. In this context, as above, I consider the fact that the word "Carabao" has no acknowledged meaning in English reinforces this conclusion. [55] I acknowledge that the expert evidence provided by the appellant and the respondent differed fundamentally at this point. Acknowledging various judicial comments as to the relevance, or otherwise, of such evidence, I did not find the distinctions drawn by the appellant's expert, Mr Stewart, to be persuasive. On the other hand I thought that the evidence of the respondent's expert, Professor Brodie, made overall good sense. [56] Looking now at the circumstances in which the marks are likely to be used, together with the character of those involved in that market, I conclude that in the context of the energy drinks' market and consumers of energy drinks, the overall similarities between the appellant's mark and the respondent's marks is further likely to deceive or confuse. Whilst I may not, nor be required to, fully understand Professor Brodie's reference to the notion of brands acting as a gestalt or "shortcut", I accepted his evidence, and that of the other deponents for the respondent, that high volumes of sales of the respondent's energy drink products occur in the on-premises market of bars and nightclubs, and as to the noisy, dimly lit nature of such market places. I similarly accept evidence as to the way in which products are stocked in retail outlets, and the relatively casual nature of the purchasing decision for a product such as an energy drink, and agree that such considerations all raise the possibility of confusion and deception. [57] In reaching my final conclusions, I note the following further extract from the decision of Gendall J in the "Wild Geese" case:[25] In the end I have to make up my own mind applying the well-known approaches. I keep in mind the caution expressed by Gault J (as he then was) in Allied Liquor Merchants Ltd v Independent Liquor (NZ) Ltd (1989) 3 TCLR 328, 244; 17 IPR 79, 85 (albeit an interlocutory injunction caseinvolving deception under the Fair Trading Act 1986, but nevertheless still applicable): Judicial impression can be no more reliable than any other informed impression. It must not be capricious, idiosyncratic, or intuitive impression but rather, impression formed having regard to the long- established tests for the assessment of a likely reaction to a mark, label, or trade description. That requires consideration of the nature and make up of the purchasing public, that is the relevant section of the public to whom the product will have an appeal and, any particular characteristics of that section. It involves consideration of the nature of the product and circumstances of trade through which the product passes. That extends to the manner of marketing where considerations of conduct in the context of telephone orders, self- service purchasing, and the like may be appropriate. The appearance of the label must be considered with reference to its visual impact and, where oral ordering is involved, how it will be referred to and the likely impact of that. The nature of the goods and the price give rise to considerations as to whether purchasing is likely to be curious or deliberate. In short it is necessary to take into account all the circumstances likely to influence in the course of trade, the impressions covered by the label. [26] Although those comments related to a "label" they are equally applicable to a trade mark name. [30] I think in considering the respective marks as a whole in a case such as this, the idea or concept of the mark is critical. It is well known that marks are remembered rather by general impression or by significant detail or idea than by any photographic recollection of the whole. Certainly consumers of alcoholic products or for that matter other consumers, do not have dictionaries with them when choosing the goods in question or ordering drinks on social or leisure occasions.[58] Adopting that approach, I have concluded, as did the Assistant Commissioner, that a substantial number of persons in New Zealand are likely to be confused or deceived if the appellant were to use its CARABAO mark in New Zealand in relation to energy drinks or carbonated non-alcoholic drinks. [59] Accordingly, I find that the appellant has not succeeded before me on that ground of appeal. [60] Turning now to ss 25(1)(b) and (c), and based essentially on the reasoning outlined above as regards s 17, I find that the appellant's CARABAO mark is similar to the relevant marks of the respondent and that its use is likely to deceive orconfuse. Accordingly, I also dismiss the appellant's appeal as regards the Assistant Commissioner's findings under s 25.Costs[61] I award costs in favour of the respondent. [62] Counsel may file memoranda as to costs if that is necessary. ____________________Clifford JSolicitors: Simpson Grierson, Auckland, for Appellant Kensington Swan, Auckland, for Respondent