TRADE MARKS ORDINANCE (Cap. 559) OPPOSITION TO TRADE MARK APPLICATION NO.: 303709026

MARK: CLASS: 9 APPLICANT: LE HOLDINGS LTD. OPPONENT: Intel Corporation ______STATEMENT OF REASONS FOR DECISION

Background

1. On 10 March 2016, LE HOLDINGS LTD. (the “Applicant”) filed an application (the “subject application”) under the Trade Marks Ordinance (Cap. 559) (the “Ordinance”) for the registration of the following mark:

(the “subject mark”).

2. Registration is sought in respect of goods under Class 9 (the “subject goods”), particulars of which are set out in the following:

Class 9 Theft prevention installations, electric; batteries, electric, for vehicles; portable media players; computer operating programs, recorded; computer programs [downloadable software]; monitors [computer hardware]; computer software applications, downloadable; vehicle radios; navigation apparatus for vehicles [on- board computers]; satellite navigational apparatus; stereoscopes; remote control apparatus.

3. Particulars of the subject application were published on 29 April 2016. Intel

1

Corporation (the “Opponent”) filed on 20 July 2016 a notice of opposition to the subject application together with a statement of grounds of opposition, which was subsequently amended with leave and filed on 2 August 2016 (“Amended Grounds of Opposition”). A counter-statement (“Counter-statement”) was filed by the Applicant on 30 September 2016 in response to the Amended Grounds of Opposition.

4. In support of the opposition, the Opponent filed under Rule 18 of the Trade Marks Rules (Cap.559, sub. leg.) (the “TM Rules”) a statutory declaration made by James Nucci dated 16 June 2017 (“Nucci’s SD”) together with exhibits. The Applicant did not file any evidence in support of its application.

5. The opposition hearing was scheduled to be heard on 20 December 2018. Neither party filed a notice of attendance at hearing (Form T12). Both parties are treated as not intending to appear at the hearing pursuant to Rule 74(5) of the Trade Marks Rules. Written submissions (“Written Submissions”) were filed on 20 December 2018 by Rouse & Co International (Overseas) Limited, the Opponent’s agent (the “agent”)1. Pursuant to Rule 75(b) of the TM Rules, I now proceed to decide the matter without a hearing.

Amended Grounds of opposition

6. According to the Amended Grounds of Opposition, the Opponent, a United States company, carries on the business of development, manufacture, distribution, marketing and sale of high quality computer and electronic goods, including micro-processors, boards, and system building blocks that are integral to servers, computers, and networking and communications products. It was claimed that the Opponent’s products including micro-processors, flash memory chips, networking peripherals, chipsets/motherboards, imaging/graphics and communication products which bear the name “INTEL”. The Opponent claims to have provided the said products in Hong Kong for almost 40 years and is the largest manufacturer and distributor of micro-processors in the world.

7. According to the Opponent, the Opponent is the registered proprietor of the trade mark “INTEL INSIDE” (the “Opponent’s Mark”)2 and its variant marks for the

1Formerly known as “Rouse Legal”. 2 Mark No.5 as per paragraph 8 below

2 Opponent’s goods. The Opponent claimed that the Opponent’s Mark and the Opponent’s “{word} + INSIDE” format marks were created by the Opponent. The Opponent has registered a number of trade marks in the “{word}+ INSIDE” format including for example “CORE INSIDE”, “INTRU 3D INSIDE” etc.

8. The Opponent is the owner of the following marks registered in Hong Kong3 (collectively, the “Opponent’s HK Registered Marks”):

Trade Mark No. Date of Mark Class registration 200215184 1/3/2000 41 (“Mark No.1”) 200301521 28/1/1999 9 (“Mark No.2”)

200302544 17/6/1999 9 (“Mark No.3”)4

300553284 22/12/2005 9 (“Mark No.4”)

301299952 9/3/2009 9 (“Mark No.5”) 301608264 7/5/2010 9 (“Mark No.6”)

302142305 18/1/2012 9 (“Mark No.7”)

302142314 18/1/2012 9 (“Mark No.8”)

3 Listed in Appendix A to the Amended Grounds of Opposition. 4 According to the Trade Mark Records at Exhibit 11, Mark No.3 had expired and been removed and the entry date for such removal was 20 December 2016. 3

302546208 12/3/2013 9, 41, (“Mark No.9”) 42

302546217 12/3/2013 9, 41,

(“Mark No.10”) 42 303170088 17/10/2014 9, 10, (“Mark No.11”) 14, 25

9. Based on the alleged similarity between the subject mark and the Opponent’s Mark/ “{word} + INSIDE” format marks and between the subject goods and the Opponent’s goods covered by the Opponent’s Mark and “{word} + INSIDE” format marks, the Opponent opposes the subject application under sections 11(4)(b), 11(5)(b) and 12(3), 12(4) and 12(5)(a) of the Ordinance. The Opponent also seeks a costs order against the Applicant.

Counter-statement

10. In the Counter-statement, the Applicant denies that the subject mark is confusingly similar to the Opponent’s trade marks which comprise the word “INSIDE” as shown in the Amended Grounds of Opposition. The Applicant also avers that the subject mark was devised by the Applicant in good faith without any intention to free ride on the coat tails of and benefit from the reputation of the Opponent in the Opponent’s marks.

Relevant date

11. The relevant date for considering the opposition is 10 March 2016, which is the filing date of the subject application for registration.

Evidence of the Opponent

12. Nucci’s SD was made by Mr. James Nucci, who is the Director of Product Brand Strategy and Marketing of the Opponent. According to the Nucci’s SD, the Opponent was founded in 1968 by Bob Noyce, one of the inventors of the integrated circuit and Gordon Moore. In 1971, the Opponent invented the first

4 large scale manufacturable microprocessor. 5 It is claimed that apart from manufacture and distribution of microprocessors, the Opponent is also known to provide a wide variety of other goods and services such as networking apparatus, interface cards, chipsets, memory devices, microcontrollers, sensors, artificial intelligence devices and other integrated circuits as well as software (“Intel Goods”) which are used in consumer electronics such as computers, computer systems, smartphones etc. The Opponent also provides support to and works with software vendors and developers. Exhibit 1 contains a copy of an extract of the Opponent’s Annual Reports of 2013, 2014 and 2015. Exhibit 2 shows undated printouts of the relevant webpages from “Fortune” website http://fortune.com/. The Opponent was ranked No.51 of the Fortune 500 List in 2016.

13. According to Nucci, the Opponent has developed its business in Hong Kong for over 35 years and provides its goods and services in Hong Kong through its local subsidiary Intel Semiconductor Limited (“ISL”) which was incorporated in 1980. Exhibit 3 shows copy of a printout of the company search record of ISL and a webpage of Hong Kong Trade Development Council (“HKTDC”) with information of ISL. According to the HKTDC webpage exhibited, products provided by ISL include central processing unit and integrated circuit.

14. According to paragraph 10 of Nucci's SD, in 1990, the Opponent launched “The Computer Inside” tagline to promote the Opponent’s products and to educate consumers that the system was designed with an Intel microprocessor. Exhibit 5 shows a copy of the advertisement showing use of the mark “Intel The Computer

Inside”

15. Nucci stated that in 1991, the Opponent developed the INTEL INSIDE mark and also an advertising campaign with a view to enabling end users to identify which computer products include the Opponent’s Intel microprocessors. The said advertising program was claimed to be very successful. Exhibit 4 contains a copy printout of the article titled “Intel Inside® Program: Anatomy of a Brand Campaign” from the Opponent’s website printed on 1 September 2011, which contains comments on the INTEL INSIDE advertising program. Exhibit 6 contains copies of press reports from different publications such as Advertising Age, Adweek, Business Week etc. of various dates. There is no evidence to show

5Paragraph 5 of Nucci's SD 5

that those publications had been in circulation in Hong Kong before the relevant date.

16. According to Nucci, the Opponent’s Mark is used with the Opponent’s microprocessors and it is licensed to PC makers and affixed to PCs, smartphones, notebook computers and tablets.6 It was claimed that in addition, the Opponent’s Mark has been used and licensed for use on various products such as cars, wearables and drones. Some colour screenshots showing the Opponent’s marks

e.g. “ , “BMW Connected Drive with Intel Inside” being used on the said products were provided under paragraphs 15 to 20 of Nucci’s SD. Printouts of the front pages of the web-links to the car maker BMW are produced in Exhibit 7. It was not mentioned whether the said products using the Opponent's marks had been sold in Hong Kong.

17. Under paragraph 21 of Nucci's SD, it was stated that the Opponent has collaborated with Dreamworks in developing Intel InTru 3D technology which is a stereoscopic 3D technology. Exhibit 8 contains copy of posters of the films

showing the mark or , a copy of “INTEL VISUAL ADRENALINE” Issue 2 of 2009 and a copy of press release from the Opponent’s website dated 8 July 2008.

18. According to Nucci, the Opponent initiated a licensing program with PC manufacturers (also known as Original Equipment Manufacturers (“OEMs”)) that purchased the Opponent’s microprocessors and it was called “Intel Inside Program”. The Intel Inside Program permits licensed OEMs to use the INTEL INSIDE mark on products such as desktop computers, laptop computers etc. that are designed with genuine Intel processors. Under this program, licensees are also reimbursed a portion of their costs of advertisements co-branded with the INTEL INSIDE logo. Nucci said the Intel Inside programs have become a fundamental element of the Opponent’s worldwide marketing efforts. Copy of the Opponent’s 1st INTEL INSIDE Logo Usage Guidelines dated 1991 is produced in Exhibit 9. With the introduction of other marks of the Opponent such as PENTIUM in 1993, additional versions of the logo were added to the licensing of the brand later. Exhibit 10 shows copy of the publication titled “The Intel Inside® Pentium®

6Paragraph 14 of Nucci's SD

6 Processor with MMXTM Technology Logo Print Usage, Eligibility and Trade Mark Guidelines” printed in 1996. Images of various different versions of the “INTEL INSIDE” mark said to be used by the Opponent and licensed to OEM were screen captured under paragraph 23 of Nucci’s SD. It includes for example the following marks:

19. Nucci stated that the figures of reimbursement to the licensees of China and Hong Kong of the costs for co-branded advertisements bearing the INTEL INSIDE mark ranged from US$3.4 million in 2012 down to US$1.2 million in 2015. He also referred to the web-links to the online product catalogues of some leading manufacturers of computer systems and electronic devices using Intel microprocessors such as HP Inc., Dell Inc. etc. and said that the Opponent’s Mark and the “{word} + INSIDE” format marks had been used in Hong Kong. Exhibit 13 contains printouts of the extracted pages of several product catalogues. It is

noted that the marks appearing on those pages include e.g. and .

20. Nucci produced copies of newspaper advertisements and promotional materials with a view to showing the Opponent’s Mark or its variants used in China, Hong Kong, Taiwan, Vietnam, Thailand, Philippines etc. at Exhibit 17. The pages of advertisement which relate to Hong Kong are from the 160th to 163th pages of Exhibit 17. The mark shown in those promotional leaflets in Hong Kong is

relating to LENOVO tablet. Copy of online news articles relating to coverage on the Opponent’s news or its products from some Hong Kong newspapers such as Apple Daily are produced in Exhibit 18. Exhibit 19 contains copy photos and articles featuring the Opponent’s technological and educational events in Hong Kong e.g. the Intel International Science and Engineering Fair etc.

21. According to paragraphs 36 and 37 of Nucci’s SD, the Opponent’s revenue for the years 2011 to 2015 for China (including Hong Kong) ranged from about US$7.1 billion to US$11.7 billion. Exhibit 20 shows copy of the extracts from Intel’s Annual Reports for 2013 to 2015. It was also claimed that the estimated sales

7

revenue figures for processors sold in association with the Opponent’s Mark in Hong Kong were said to range from $US4.3 billion in 2011 to US$7 billion in 2015. No sales invoice or receipt has been produced though. The annual global advertising costs (comprised of direct marketing costs and Intel Inside cooperative advertising and marketing programmes) were claimed to be from US$2.1 billion in 2011 down to US$1.8 billion in 2015.

22. Under paragraph 25 of Nucci’s SD, Nucci set out a number of the Opponent’s trade mark registrations in Hong Kong. Copies of the Hong Kong Trade Marks Registry online records relating to the said marks were produced in Exhibit 11. I note from the said online records that a number of trade mark registrations had expired and been removed. 7 Exhibit 12 shows copy of various trade mark registration certificates of the Opponent’s marks registered in other jurisdictions such as Australia, China, Europe, Japan etc.

23. Nucci said that the Opponent’s Mark and “{word} + INSIDE” format marks have become famous and well-known in Hong Kong and China. He claimed that on 27 May 2011, the Opponent's INTEL INSIDE mark was confirmed as a famous trade mark of Class 9 goods by the Trademark Review and Adjudication Board (“TRAB”) of the State Administration for Industry and Commerce of China (“SAIC”). Exhibit 14 was said to be a copy of the Confirmation of Famous Trade Marks by TRAB downloaded from SAIC website. In fact, Exhibit 14 does not contain the said Confirmation but several decisions of TRAB involving the Opponent dating from 25 July 2011. The marks contested by the Opponent (e.g. “API INSIDE”, “XP INSIDE”) in those decisions are different from the subject mark.

24. Nucci also referred to some decisions in other countries such as Belarus, UK, Europe, Russia, France and Taiwan, which were produced in Exhibit 15. He claimed that the Opponent’s Mark INTEL INSIDE has acquired reputation in those countries. Exhibit 16 shows copy of some English translations of decisions relating to the refusal of marks containing the “{word}+ INSIDE” format mark not owned by the Opponent in other jurisdictions. It is noted that the decisions referred to involve marks different from the subject mark.

7 Apart from Mark No.3, the Opponent’s HK Registered Marks referred to by the Opponent in its Amended Grounds of Opposition remain registered.

8 25. Nucci produced in Exhibit 21 copy printouts of information from le.com allegedly to be related to the Applicant, which are all dated posterior to the date of the application. Exhibit 22 contains printouts of search results showing news titles relating to LeEco and an article from Wikipedia on LeEco. The rest of Nucci's SD is Nucci's submissions rather than evidence, which I do not find necessary to provide in detail.

26. The Applicant did not file any evidence in the proceedings.

Opposition under section 12(3) of the Ordinance

27. Section 12(3) of the Ordinance provides as follows:

“A trade mark shall not be registered if– (a) the trade mark is similar to an earlier trade mark; (b) the goods or services for which the application for registration is made are identical or similar to those for which the earlier trade mark is protected; and (c) the use of the trade mark in relation to those goods or services is likely to cause confusion on the part of the public.”

28. According to section 7(1) of the Ordinance, in determining whether the use of a trade mark is likely to cause confusion on the part of the public, the Registrar may take into account all factors relevant in the circumstances, including whether the use is likely to be associated with an earlier trade mark.

29. The basic principles regarding the assessment of similarity between signs and the likelihood of confusion between them are set out in Specsavers International Healthcare Ltd v Asda Stores Ltd [2012] F.S.R. 19. Such principles have been adopted in Hong Kong and confirmed by the Court of Appeal and Court of Final Appeal in Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2015] 1 HKLRD 414 and Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd (No 2) [2016] 4 HKC 486. Lam VP of the Court of Appeal cited (at paragraph 35) the propositions endorsed by Kitchin LJ in Specsavers (at paragraph 52) as follows:

9

“On the basis of these and other cases the Trade Marks Registry has developed the following useful and accurate summary of key principles sufficient for the determination of many of the disputes coming before it:

(i) the likelihood of confusion must be appreciated globally, taking account of all relevant factors; (ii) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question; (iii) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; (iv) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; (v) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components; (vi) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; (vii) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa; (viii) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; (ix) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; (x) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; (xi) if the association between the marks causes the public to wrongly believe that the respective goods [or services] come from the same or economically-linked undertakings, there is a likelihood of confusion.”

10

30. Section 12(3) essentially prohibits the registration of a trade mark which would be likely to cause confusion on the part of the public as a result of its being similar to an earlier trade mark and because it is to be registered in respect of goods the same as or similar to those the subject of the earlier trade mark. I must therefore consider whether there are similarities between the subject mark and the Opponent’s marks and the goods covered, and whether they would combine to create a likelihood of confusion.

Earlier trade marks

31. Each of the Opponent’s HK Registered Marks has a date of the application for registration earlier than that of the subject mark. According to section 5(1)(a) of the Ordinance, each of those marks is an earlier trade mark in relation to the subject mark.

32. The Opponent’s HK Registered Marks can be roughly divided into 2 groups: one group containing the words INTEL INSIDE either alone (whether in plain font or stylized) or in conjunction with a device or words additional to INTEL INSIDE, i.e. Marks Nos.2, 3, 4, 5, 7, 8, 9, and 11 (“Intel Marks Group”); the other group containing a combination of words which have the word INSIDE at the end i.e. Marks Nos.1, 6, and 10 (“Non-Intel Marks Group”).

33. Within the Intel Marks Group, since Mark No.3 has expired and was removed from the register and it has apart from the 2 words “intel inside” a very distinctive word “Pentium”, it is markedly different from the subject mark, which contains a device with the words “ inside”. It would not stand a better chance of success than other marks in the Intel Marks Group. I will therefore only make a comparison between Marks Nos.2, 4, 5, 7, 8, 9 and 11 on the one hand and the subject mark on the other hand.

34. As for the Non-Intel Marks Group, Mark No.6 (Marks A and B being identical

except for the colour claim in Mark A) is presented as a distinctive spherical device with shadows. The words “INTRU 3D” is placed within the spherical device and the word “inside” appears in a much smaller font beneath the

11

spherical device. Having considered the marked differences of the respective devices in Mark No.6 and the subject mark together with the different literal elements of both marks (i.e. “INTRU 3D inside” and stylized “ inside”), I am of the view that they have little in common in terms of meaning, presentation, font and pronunciation. Its similarity with the subject mark (if any) would not be higher than that of Marks Nos.1 or 10. In the circumstances, for the Non-Intel Marks Group, I will only compare Marks No.1 and 10 with the subject mark.

Average Consumer

35. The subject goods include computer related goods such as computer programs [downloadable software]; monitors [computer hardware]; computer software applications, downloadable and some specific goods such as theft prevention installations, electric; batteries, electric, for vehicles etc. under Class 9. The average consumers in question include members of the general public in Hong Kong and business customers who are interested in these goods. They are deemed to be reasonably well-informed, reasonably circumspect and observant and are expected to pay an average level of care and attention (and a higher level of care and attention for business consumers) when selecting the subject goods.

Opponent’s Marks Nos.2 and 5

Distinctiveness of Mark

36. The distinctive character of the earlier trade mark is a factor to be taken into account in the assessment of the likelihood of confusion. It is well established that there is a greater likelihood of confusion where the earlier mark has a highly distinctive character either because of its inherent qualities or because of the use that has been made of it.8

37. In determining the distinctive character of an earlier trade mark, I must make an overall assessment of the greater or lesser capacity of the mark to identify the goods or services for which it has been registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular,

8Sabel v Puma [1998] RPC 199

12 of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (Windsurfing Chiemsee v Huber and Attenberger [1999] ETMR 585 at paragraph 51; Lloyd Schuhfabrik Meyer & Co GmbH v Klijsen Handel BV [2000] FSR 77 at paragraph 24).

38. I will discuss Mark No.5 first. Mark No.5 of the Opponent comprises two words “INTEL” and “INSIDE” in plain font. There is no other decoration or stylization. Nor is there any colour claim. Mark No.5 is registered in respect of goods in Class 9 (“Opponent’s Mark 5 Goods”) such as computers, computer peripherals etc. (see Annex 1). The word “INTEL” has an informal meaning of “Information of military or political value” and can serve as an abbreviation of “intelligence” (https://en.oxforddictionaries.com/definition/us/intel) whereas the word “INSIDE” is an ordinary word for “the inner side or surface of something”, which has a more descriptive nature in relation to the Opponent’s Mark 5 Goods. The words “INTEL INSIDE” as a whole has a medium degree of distinctiveness in respect of the Opponent’s Mark 5 Goods. The word “INTEL” is considered a more distinctive element in Mark No.5 when used on the subject goods.

39. With regard to the evidence filed by the Opponent, it is noted that the Opponent’s first Hong Kong subsidiary ISL was established in 1980. It is claimed that the Opponent provides its goods and services through ISL. Although Nucci claimed that the Opponent has used various forms of the INTEL INSIDE mark and “{word} + INSIDE” format marks around the world and in Hong Kong over the past 2 decades,9 the earliest actual use of the mark INTEL INSIDE or its variant in Hong Kong as verified by Exhibit 17 to Nucci’s SD was in 2014. It is observed from the evidence that while there is some use of the “INTEL INSIDE” mark or its variant (for instance INTEL INSIDE with a device) in Hong Kong, none of the so-called “{word} + INSIDE” marks such as Marks Nos.1 or 10 can be found. Apart from

9 Paragraph 25 of Nucci’s SD 13

processors, there is little evidence of use of the INTEL INSIDE mark or its variants in Hong Kong in relation to other goods. The claimed estimated sales revenue figures for processors sold in association with the Opponent’s Mark in Hong Kong are substantial i.e. from US$4.3 billion in 2011 to US$7 billion in 2015.

40. It is noted that the product catalogues relating to Hong Kong are few and they mainly relate to processors. Regarding promotion, the reimbursement of total costs of the advertisements bearing the INTEL INSIDE mark for Hong Kong and China was stated to be ranging from US$3.4 million in 2012 to US1.2 million in 2015. There was no breakdown of the said figures for Hong Kong alone.

41. Much evidence relates to the history and development of the marketing campaign of “INTEL INSIDE” and they were sourced from overseas publications. It is not known whether the products (other than processors) shown in the screen captures in Nucci’s SD were actually sold in Hong Kong. Nucci produced copies of several decisions of TRAB in China in support of its claim that the Opponent’s Mark is famous and well known in China and Hong Kong. He also referred to a number of decisions in other jurisdictions where the Opponent prevailed against entities which have tried registering marks with a combination of a word and “inside”. Those cases concern marks which are different from the subject mark. There is also no direct evidence on the proportion of the relevant section of the public which, because of the mark “INTEL INSIDE” or its variants, identifies the Opponent’s Goods as originating from a particular undertaking; and there is no statement from any chambers of commerce and industry or other trade and professional associations.

42. Based on the Opponent’s evidence and viewing the same as a whole, I find that the level of distinctiveness of Mark No.5 INTEL INSIDE has not been significantly enhanced through use. As for Marks Nos.1 and 10, since there is no use of such marks in Hong Kong as shown by the evidence, there is no question of enhanced distinctiveness.

Comparison of marks

43. A comparison of the marks concerned has to be based on an overall appreciation of the visual, aural and conceptual similarities of the marks in question, taking into account the overall impressions given by the marks, and bearing in mind, in particular, their distinctive and dominant components. In comparing the marks

14 concerned, I should consider the perception of the marks in the mind of an average consumer of the relevant goods.

44. Regarding the comparison of marks, comparison of goods etc., the agent’s submissions are summarized as follows10:

(a) Both the subject mark and the Opponent’s Mark contain the word “inside” as the second word and the subject mark has adopted the alleged unique “{word} + inside” format. The subject mark is therefore visually and aurally similar to the Opponent’s Mark. (b) The presence of “ecolink” in the subject mark is not sufficient to distinguish it from the Opponent’s Mark by reason that the word “INSIDE” is more prominent and as a result of the reputation acquired by the Opponent’s Mark and other “{word} + inside” marks. (c) It is submitted that the “{word} + inside” is not grammatically correct. The structure and format of the Opponent’s Mark indicates the presence of a certain quality to be found associated with the product (technical innovation, high performance) as part of the design of the product and the subject mark conveys the same concept. (d) The word “Eco” and “Link” are considered to be of low distinctiveness in the field of technology products, being commonly used for describing characteristics of being “satisfactory in ecological terms” and “may permit connections or connectivity”. (e) The subject goods under Class 9 are identical or similar to the goods registered under the Opponent’s Mark or its variant marks.

45. The subject mark is a composite mark consisting of a vertical rectangular device with rounded corners on all sides. Inside the vertical rectangular device, there are some smaller horizontal rectangles also with rounded corners occupying the upper half of the rectangular device as shown. In the lower part of the vertical rectangular device, there are the words , which may be perceived as “ecolink” (as per the Counter-statement) or possibly “ecounk” (as

10 Paragraphs 14 to 28 of the Written Submissions 15

per paragraph 14 of the Written Submissions) as the letter after “o” resembles the letter “u”, together with the word “inside” in lower case. The word “inside” is in a much smaller font and is placed under . There is no other decoration or colour claim. Neither “ecolink” nor “ecounk” has any dictionary meaning although “eco” could be a short form for the word “ecology” or to be used as a modifier e.g. an eco group (https://www.collinsdictionary.com/dictionary/english/eco_1). If it is understood as “ecolink”, the word may be perceived as a connection relating to something ecological11. Otherwise, “ecounk” does not have any comprehensible meaning. On the whole is considered a more distinctive and dominant element than the word “inside” as a result of its much bigger size and prominent position in the subject mark and also because of the more descriptive nature of the word “inside” in relation to the Class 9 goods. The most dominant and distinctive element of the subject mark is while the word “inside” should not be overlooked.

46. In comparing the marks, I do bear in mind that an average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, and rarely has the chance to make direct comparisons between marks but must instead rely upon the imperfect picture of them he has kept in his mind.

47. Visually, Mark No.5 and the subject mark are only similar to the extent that they contain the word “inside”. The first word of the subject mark may be perceived as either “ecolink” or “ecounk” while the first word of Mark No.5 is “INTEL”. In my view, the word “inside” would be perceived by consumers to have the function of qualifying the word in front so that the whole phrase would carry a meaning that there is something inside, whatever that something is. As such, the word “inside” is descriptive and not distinctive in relation to the subject goods/ Opponent’s Mark 5 Goods which are, after all, electronic devices or apparatus composing of many electronic or technical components inside. People are bound to pay attention to the word in front to find a clue as to what is inside the electronic devices or apparatus. In addition, the

11 “Ecology” means the study of the relationships between plants, animals, people, and their environment, and the balances between these relationships.

16 average consumer will naturally focus more on the beginning word of the marks i.e. “INTEL” and (either “ecolink” or “ecounk”) (El Corte Inglés v OHIM – González Cabello v Iberia Líneas Aéreas de España (MUNDICOR) [2004] ECR II-965 at paragraph 83). Hence “ecolink” or “ecounk” and “INTEL” are the more distinctive elements in the respective marks. is not visually similar to “INTEL” in terms of spelling and presentation. Moreover, although the principle words speak louder than device applies, the vertical rectangular device and the horizontal rectangles inside should not be totally disregarded. On the whole, I find the visual similarity between the two marks is very low.

48. Aurally, if one tries to pronounce the subject mark, consumers may refer to the literal elements instead of the devices. Therefore, the subject mark may possibly be referred to as “ecolink inside” (/iːkəʊlɪŋk-ɪnsaɪd/)/ “ecounk inside” (/iːkʌŋk- ɪnsaɪd/)/ or simply “ecolink” (/iːkəʊ-lɪŋk/)/ “ecounk” (/iːkʌŋk/) in view of its more distinctive character. Likewise, Mark No.5 may be referred to as “INTEL INSIDE” (/ɪntel-ɪnsaɪd/) or “INTEL” (/ɪntel/). “Ecolink” or “ecounk” does not bear any phonetic resemblance to “INTEL”. The phonetic similarity between the two marks is low.

49. Conceptually, although the subject mark contains the word , whether the subject mark is perceived as “Ecolink” or “ecounk”, it would conceptually be different from Mark No.5 since INTEL does not have any meaning which is similar to the aforesaid. I have not lost sight of the overlapping element “inside”. However, in view of the most dominant and distinctive element being “Ecolink”/ “ecounk” and “INTEL”, I find conceptually Mark No.5 and the subject mark are not similar.

50. Having regard to the visual, aural and conceptual similarities and differences between the subject mark and Opponent’s Mark No.5, I find that the overall impression created by the subject mark is different from that created by Mark No.5. I find that the two marks are not similar.

51. As for Mark No.2 , it is similar to Mark No.5 to a large extent given the identical words in both marks. Like Mark No.5, for similar reasons, it is considered to be inherently distinctive to a medium degree in respect of the Class

17

9 goods registered. The observations on enhanced distinctiveness on Mark No.5 as well as the comparison of marks between Mark No.5 and the subject mark above also apply. In addition, in view of the more stylized presentation of Mark No.2, its visual similarity with the subject mark is even lower than that with Mark No.5. Having regard to the visual, aural and conceptual similarities and differences between the subject mark and the Opponent’s Mark No.2, I find that the overall impression created by the subject mark is different from that created by Mark No.2. The two marks are dissimilar.

Comparison of goods

52. In assessing the similarity of the goods and services concerned, the following factors set out by Jacob J (as he then was) in British Sugar Plc v James Robertson and Sons Ltd [1996] R.P.C. 281 (at pages 296-7) should be taken into account:

(a) The respective uses of the respective goods or services; (b) The respective users of the respective goods or services; (c) The physical nature of the goods or acts of services; (d) The respective trade channels through which the goods or services reach the market; (e) In the case of self-service consumer items, where in practice they are respectively found or likely to be found in supermarkets and in particular whether they are, or are likely to be, found on the same or different shelves; and (f) The extent to which the respective goods or services are competitive. This inquiry may take into account how those in trade classify goods, for instance whether market research companies, who of course act for industry, put the goods or services in the same or different sectors.

53. It was also held in Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc. [1999] E.T.M.R. 1 (at paragraph 23) that when comparing the similarity of the goods or services in question, all the relevant factors relating to the goods or services, including but not limited to their nature, their end users, their method of use and whether they are in competition with each other or are complementary, should be taken into account.

18 54. Regarding most subject goods relating to computers, they are either identical or highly similar to the Opponent's Mark 5 Goods and the Class 9 goods registered under Opponent’s Mark No.2 (“Opponent's Mark 2 Goods”) (see Annex 1). For example, “monitors [computer hardware]” of the subject goods is a kind of “computer hardware” under a broader category of the Opponent’s Mark 5 Goods and Opponent's Mark 2 Goods. With regard to some subject goods such as theft prevention installations, they are in general dissimilar to or similar to a lesser degree to the Opponent's Mark 5 Goods or Opponent's Mark 2 Goods.

Likelihood of confusion

55. The likelihood of confusion must be appreciated globally, taking into account all relevant factors which have a degree of interdependency. The matter must be judged through the eyes of the average consumer of the goods who is deemed to be reasonably well-informed and reasonably observant and circumspect.

56. In this case, the average consumers for the subject goods include members of the general public as well as business customers with specific professional knowledge or expertise. The level of attention of the relevant public may vary from average to high. I have also found that the Opponent’s Mark No.5 and Mark No.2 possess some inherent distinctiveness in respect of the Opponent’s processors although its distinctiveness has not been enhanced significantly through use. Having regard to the visual, aural and conceptual similarities and differences between the subject mark and the Opponent’s Mark No.5/ Mark No.2, I find that the overall impression created by the subject mark is rather different from that created by the Opponent’s Mark No.5/ Mark No.2. The subject goods include goods that are identical or highly similar to some of the Opponent’s Mark 5 Goods/ Opponent’s Mark 2 Goods as well as some goods which are less similar or dissimilar to the Opponent's Mark 5 Goods/ Opponent’s Mark 2 Goods.

57. Taking into account the combined effect of all of the above considerations, I consider that even when the subject mark is used in relation to those of the subject goods that are identical to the Opponent’s Mark 5 Goods/ Opponent’s Mark 2 Goods, the average consumer would unlikely be misled into believing that those goods and the Opponent’s Mark 5 Goods/ Opponent’s Mark 2 Goods come from the same or economically-linked undertakings.

19

58. The opposition under section 12(3) of the Ordinance based on the Opponent’s Mark No.5 and Mark No.2 therefore fails.

Opponent's Marks Nos.4, 7, 8, 9 and 11

59. Mark No.4 , Mark No.7 , Mark No.8 , Mark

No.9 and Mark No.11 have one thing in common i.e. the word "intel" is placed either above or next to the word "inside". Moreover, the word "intel" is encircled by an oval device in these marks. Marks Nos.8 and 11 are almost identical except for the font style of the word "inside". Mark No.9 has an additional word "Look" before the word "inside".

60. The observations with regard to the inherent and enhanced distinctiveness of Mark No.5 also applies to these marks. The major difference between Mark No.5 and these marks lies in the addition of the circular device and the positioning; for Mark No.9, it has the additional word "Look". In fact the circular device serves to high- light the word "intel" making it more prominent then the word "inside". In terms of visual, aural and conceptual comparison with the subject mark, they are on the whole dissimilar. The only similarity is the word "inside" as the second (or third) word. Some goods under Class 9 covered by the respective Marks Nos.4, 7, 8, 9 and 11 such as computers, computer hardware, computer peripherals etc. (see An- nex 1) are identical or highly similar to some of the subject goods e.g. monitors [computer hardware], computer software. There are also subject goods which are less similar or dissimilar to the goods covered by Opponent’s Marks Nos.4, 7, 8, 9 and 11.

61. Taking into account the combined effect of all of the above considerations, I consider that even when the subject mark is used in relation to those subject goods that are identical to the Opponent’s registered goods covered by the aforesaid marks, the average consumer would unlikely be misled into believing that those goods and the Opponent’s goods registered under Marks Nos.4, 7, 8, 9 and 11 come from the same or economically-linked undertakings.

62. The opposition under section 12(3) of the Ordinance based on the Opponent's

20 Marks Nos.4, 7, 8, 9, and 11 must fail.

Opponent’s Marks Nos.1 and 10

Comparison of Marks

63. As for Mark No.1, , it is registered in respect of services under Class 41 (“Opponent’s Mark 1 Services”) (see Annex 1). Mark No.1 does not convey any particular descriptive meaning when used on Opponent’s Mark 1 Services and is considered inherently distinctive. As said before, as there is no evidence of use of the mark, its distinctiveness has not been enhanced.

64. Mark No.1 contains 3 words in plain font. Like Mark No.5, visually, Mark No.1

and the subject mark are similar only to the extent that they contain the word “inside”. As explained above, since “inside” is a more descriptive word and serves to qualify the word in front, the average consumer will naturally focus more on the beginning word of the marks i.e. “THE JOURNEY” and . Moreover, there are 3 words in Opponent’s Mark No.1 which convey a clear meaning i.e. the act of travelling inside a place while ’s meaning could be some connection relating to ecology or no particular meaning. Moreover, the devices of the subject mark should also not be overlooked. The overall degree of visual, aural and conceptual similarity between the two marks is considered very low.

65. Turning to Mark No.10 , it is also a word mark in plain capital letters. There is no decoration or stylization. It is registered in respect of goods under Class 9, services under Class 41 and Class 42, the details of which are at Annex 1. Mark No.10 contains 2 ordinary English words and when combined together, it would mean to direct one’s eyes to see something inside. The mark may be referred to as “LOOK INSIDE”. On the whole, the distinctiveness of Mark No.10 in respect of its registered goods and services is not high. As there is no evidence of use of the mark, there is no question of distinctiveness being enhanced. Mark No.10 and the subject mark are only similar to the extent that they have the word “inside” in common. Applying the relevant

21

legal principles and rationale as in the preceding paragraph above, on the whole, I find the visual, aural and conceptual similarity between Mark No.10 and the subject mark to be quite low.

Comparison of goods/ services

66. Some of the Opponent’s Mark 1 Services under Class 41 such as “conducting classes, seminars, conferences, and workshops in the field of computers, computing, computer technology, information technology, computer and software use, Internet navigation, computer management, and computer purchases” and the subject goods relating to computer goods such as “computer programs [downloadable software]” in Class 9 may be complementary and provided by the same manufacturer hence they have some degree of similarity. Other Opponent’s Mark 1 Services are less similar or dissimilar to the subject goods.

67. Some of registered goods under Mark No.10 (“Opponent’s Mark 10 Goods”) such as “computer software used to maintain and operate computer systems” in Class 9, is either identical or highly similar to some of the subject goods such as “computer programs [downloadable software]”, “computer software applications, downloadable”, in Class 9). Other Opponent’s Mark 10 Goods or services registered under Classes 41 or 42 are similar to a lesser degree or dissimilar to the subject goods.

Likelihood of confusion

68. At paragraph 26 of the agent’s Written Submissions, it was claimed that by virtue of the extensive and long standing use and heavy promotion, the Opponent’s INTEL INSIDE mark and “{word} + inside” format marks have acquired significant distinctiveness in relation to the Opponent’s goods. Through use, the word “INSIDE” was said to have achieved importance and distinctiveness in the mark equal to that of “INTEL”. Under paragraphs 29 and 30 of Nucci’s SD, it was said the use of the INTEL INSIDE mark and “{word} + inside” format marks has contributed to the association of all “{word} + INSIDE” format marks exclusively with the Opponent. Through continuous use, the Opponent’s Mark and the “family” of “{word} + INSIDE” format marks have become famous and well-known in Hong Kong and China.

22 69. It appears that the Opponent’s above proposition is analogous to saying that the INTEL INSIDE mark and “{word} + INSIDE” format marks would form a “family” or “series” of marks. In Il Ponte Finanziaria SpA v. OHIM (C-234/06 P) [2008] E.T.M.R. 13 at paragraph 63, it was held that ‘Where there is a “family” or “series” of trade marks, the likelihood of confusion results more specifically from the possibility that the consumer may be mistaken as to the provenance or origin of goods or services covered by the trade mark applied for or considers erroneously that the trade mark is part of that family or series of marks.’

70. In any event, such proposition would be rejected. In Il Ponte, it was also held that “in order for there to be a likelihood that the public may be mistaken as to whether the trade mark applied for belongs to a “family” or “series”, the earlier trade marks which are part of that “family” or “series” must be present on the market (emphasis added).” Since the Opponent’s evidence only shows use of the mark INTEL INSIDE or its variant but not any other “{word} + INSIDE” marks in Hong Kong, a contention that there exists a family or series of marks of the Opponent formed by marks possessing the common element “INSIDE” cannot be established.

71. Applying the relevant legal principles and as analysed above, when comparing the subject mark with Marks Nos.1 and 10 respectively, I consider the marks to be on the whole dissimilar. Most of the subject goods and Opponent’s Mark No.1 Services are dissimilar whereas some subject goods are identical or similar to the Opponent’s Mark 10 Goods. Taking into account all of the aforesaid, even when the subject mark is used in relation to subject goods that are similar to the Opponent’s Mark 1 Services or subject goods which are identical or similar to Opponent’s Mark 10 Goods, the average consumer would be able to distinguish the marks and would not be confused into thinking that those goods and the Opponent’s Mark 1 Services or Opponent’s Mark10 Goods come from the same or economically-linked undertakings

72. The opposition under section 12(3) of the Ordinance based on the Opponent’s Mark No.1 and Mark No.10 cannot succeed.

73. The opposition under section 12(3) therefore fails.

Opposition under section 12(5)(a) of the Ordinance

74. Section 12(5) of the Ordinance provides, inter alia, as follows:

23

“(5) … a trade mark shall not be registered if, or to the extent that, its use in Hong Kong is liable to be prevented – (a) by virtue of any rule of law protecting an unregistered trade mark or other sign used in the course of trade or business (in particular, by virtue of the law of passing off);…”

75. The requisite elements for establishing a passing-off action were formulated in the case of Reckitt & Colman Products v. Borden Inc. [1990] R.P.C. 341. These elements have been repeatedly relied upon by the courts in Hong Kong including the Court of Final Appeal in Re Ping An Securities Ltd. (2009) 12 HKCFAR 808 (FACV 26/2008). In essence, in the present context, the Opponent has to establish that:

(a) the Opponent enjoys goodwill attached to the goods which it supplies in the mind of the purchasing public by association with a trade mark under which its goods are offered to the public, such that the trade mark is recognized by the public as distinctive specifically of the Opponent’s goods; (b) the Applicant has made a misrepresentation to the public leading or likely to lead the public to believe that the subject goods offered by it are the goods of the Opponent; and (c) the Opponent suffers, or is likely to suffer, damage by reason of the erroneous belief engendered by the Applicant’s misrepresentation that the source of the Applicant’s subject goods is the same as the source of goods offered by the Opponent.

76. To establish a likelihood of deception or confusion in an action for passing off where there has been no direct misrepresentation generally requires the presence of two factual elements:

(1) that a name, mark or other distinctive feature used by the plaintiff has acquired a reputation among a relevant class of persons; and (2) that members of that class will mistakenly infer from the defendant's use of a name, mark or other feature which is the same or sufficiently similar that the defendant's goods or business are from the same source or are connected.

24

77. In arriving at the conclusion of fact as to whether deception or confusion is likely, the court will have regard to:

(a) the nature and extent of the reputation relied upon; (b) the closeness or otherwise of the respective fields of activity in which the plaintiff and the defendant carry on business; (c) the similarity of the mark, name etc. used by the defendant to that of the plaintiff; (d) the manner in which the defendant makes use of the name, mark etc. complained of and collateral factors; and (e) the manner in which the particular trade is carried on, the class of persons who it is alleged is likely to be deceived and all other surrounding circumstances.12 Goodwill

78. The relevant date for determining whether the Opponent has established the necessary goodwill is the date of the application for registration of the subject mark as there is no evidence that the Applicant has used the subject mark before that date.

79. Taking into account the Opponent’s evidence as summarized and analysed in paragraphs 39 to 41, I am satisfied that the Opponent has established a goodwill and reputation in Opponent’s Mark No.5 INTEL INSIDE or its variants with the word INTEL INSIDE in respect of microprocessors in Hong Kong at the relevant date.

Misrepresentation and damage

80. Many of the subject goods relating to computer products are similar to microprocessors which the Opponent has established a goodwill in Hong Kong. The Applicant’s field of activity therefore overlaps to a certain extent with that of the Opponent.

81. On the other hand, I have already found that the overall impression created by the

12 Halsbury's Laws of Hong Kong (2nd Edition) Vol. 33, para. 225.021; Oasis Stores Ltd.’s Trade Mark Application [1998] R.P.C. 631 at 642. 25

subject mark is different from that created by Opponent’s Mark No.5 (i.e. INTEL INSIDE) or its variant marks e.g. Marks Nos.2, 4, 7, 8, 9, 11. Despite the fact that there is a certain degree of overlap of the respective fields of activity of the Opponent and the Applicant, given the dissimilarity between the subject mark and the Opponent’s Mark No.5 or its variant marks, on seeing the subject mark used in relation to the subject goods, even assuming the imperfect recollection of the marks, the public would unlikely be misled into believing that the subject goods offered by the Applicant are of the same origin as the Opponent’s goods or are connected to the Opponent. The element of misrepresentation is not made out. As such, there is no question of any damage resulting from a misrepresentation.

82. As the elements of misrepresentation and damage for establishing a case under section 12(5)(a) are not proved, the opposition under section 12(5)(a) must fail.

Opposition under section 12(4) of the Ordinance

83. Section 12(4) of the Ordinance provides, inter alia, as follows:

“… a trade mark which is– (a) identical or similar to an earlier trade mark; and (b) proposed to be registered for goods or services which are not identical or similar to those for which the earlier trade mark is protected, shall not be registered if, or to the extent that, the earlier trade mark is entitled to protection under the Paris Convention as a well-known trade mark and the use of the later trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.”

84. The meaning of “well-known trade mark” is defined in section 4 of the Ordinance. In determining whether a trade mark is well known in Hong Kong, the Registrar or the court shall have regard to Schedule 2 of the Ordinance. According to section 1(1) of Schedule 2 of the Ordinance, the Registrar or the court shall take into account any factors from which it may be inferred that the trade mark is well known in Hong Kong. These factors include, for example, the degree of knowledge or recognition of the trade mark in the relevant sectors of the public; the duration, extent and geographical area of any use of the trade mark; the duration, extent and geographical area of any promotion of the trade mark,

26 including advertising or publicity and the presentation, at fairs or exhibitions, of the goods or services to which the trade mark applies; the duration and geographical area of any registrations, or any applications for registration, of the trade mark, to the extent that they reflect use or recognition of the trade mark; the record of successful enforcement of rights in the trade mark, in particular, the extent to which the trade mark has been recognized as a well-known trade mark by competent authorities in foreign jurisdictions; and the value associated with the trade mark.

85. To succeed under section 12(4) of the Ordinance, the Opponent has to establish that: (a) the Opponent’s trade mark is an earlier trade mark which is entitled to protection under the Paris Convention as a well-known trade mark; (b) the subject mark is identical or similar to an earlier trade mark of the Opponent; and (c) the use of the subject mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

Link between the marks

86. In order to succeed under section 12(4) of the Ordinance, the Opponent will need to satisfy the condition as stated in paragraph 85(b) above, i.e. there must be a degree of similarity between the earlier mark of the Opponent and the subject mark such that the relevant section of the public establishes a link between them, even though it does not confuse them (Adidas-Salomon AG v Fitnessworld Trading Ltd [2004] ETMR 10). The existence of such a link must be appreciated globally, taking into account all factors relevant to the circumstances of the case, including the degree of similarity between the conflicting marks; the nature of the goods or services for which the conflicting marks were registered, the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public; the strength of the earlier mark’s reputation; the degree of the earlier mark’s distinctive character, whether inherent or acquired through use; and the existence of likelihood of confusion on the part of the public (Adidas-Salomon (supra); Intel Corporation Inc. v CPM United Kingdom Ltd. [2009] R.P.C. 15 at paragraph 42).

27

87. I have already found that given the overall dissimilarity between marks under the Intel Marks Group under comparison and the subject mark as detailed above, even when the subject mark is used in relation to the subject goods that are identical or similar to the Opponent’s goods or services registered under the marks of the Intel Marks Group, the average consumer would unlikely be confused into thinking that those goods and the goods/ services offered under the marks of the Intel Marks Group come from the same or economically-linked undertakings (paragraphs 56 to 57, 60 to 61). Despite the fact that some of the subject goods are identical or highly similar to the Opponent’s processor products in respect of which the Opponent enjoys reputation at the date of the subject application and despite the strength of the reputation of the Opponent's “INTEL INSIDE” mark and its variants and its distinctive character, in view of the overall dissimilarity between the subject mark and the marks of the Intel Marks Group under comparison, when the relevant consumer sees the subject mark being used in relation to the subject goods, it would not call to mind the marks of the Intel Marks Group under comparison. I am not satisfied the relevant consumers would establish a link between the subject mark and any of the marks of the Intel Marks Group. The requirement referred to in paragraph 85(b) above is not established.

Unfair advantage/detriment

88. Detriment to and unfair advantage of distinctive character or repute must be provable by real, as opposed to theoretical, evidence and cannot be merely assumed from the fact that the earlier mark has a substantial reputation (Creditmaster Trade Mark [2005] RPC 21).

89. As the Opponent has failed to establish that use of the subject mark in respect of the subject goods would give rise to a link with any of the marks of the Intel Marks Group as compared above in the minds of the relevant consumers, it follows that there is nothing from which it could be inferred that in consequence of such a link, the use of the subject mark either takes unfair advantage of the distinctive character or repute of the marks of the Intel Marks Group or is detrimental to that distinctive character or repute. The requirement referred to in paragraph 85(c) above is not established.

90. The requirements under paragraph 85(a) to (c) above are cumulative. Each of those requirements must be established before a claim under section 12(4) of the Ordinance is made out. Since the Opponent has failed to establish the requirement

28 referred to under paragraphs 85(b) and (c) above, the opposition under section 12(4) of the Ordinance must fail.

Opposition under section 11(5)(b) of the Ordinance

91. Section 11(5)(b) of the Ordinance provides that:

“(5) A trade mark shall not be registered if, or to the extent that – (a) … (b) the application for registration of the trade mark is made in bad faith.”

92. The term “bad faith” is not defined in the Ordinance. In Gromax Plasticulture Ltd v Don & Low Nonwovens Ltd [1999] R.P.C. 367 at 379, Lindsay J. said in relation to section 3(6) of the UK Trade Marks Act 1994 (equivalent to section 11(5)(b) of the Ordinance):

“I shall not attempt to define bad faith in this context. Plainly it includes dishonesty and, as I would hold, includes also some dealings which fall short of the standards of acceptable commercial behaviour observed by reasonable and experienced men in the particular area being examined. Parliament has wisely not attempted to explain in detail what is or is not bad faith in this context: how far a dealing must so fall-short in order to amount to bad faith is a matter best left to be adjudged not by some paraphrase by the courts (which leads to the danger of the courts then construing not the Act but the paraphrase) but by reference to the words of the Act and upon a regard to all material surrounding circumstances.”

93. In Harrison v Teton Valley Trading Co (CHINAWHITE) [2005] F.S.R. 10, the English Court of Appeal said (at paragraph 26):

“The words “bad faith” suggest a mental state. Clearly when considering the question of whether an application to register is made in bad faith all the circumstances will be relevant. However the court must decide whether the knowledge of the Applicant was such that his decision to apply for registration would be regarded as in bad faith by persons adopting proper standards.”

94. Further, in Ajit Weekly Trade Mark [2006] R.P.C. 25, the Appointed Person stated as follows:

29

“The subjective element of the test means that the tribunal must ascertain what the defendant knew about the transaction or other matters in question. It must then be decided whether in the light of that knowledge, the defendant’s conduct is dishonest judged by ordinary standards of honest people, the defendant’s own standards of honesty being irrelevant to the determination of the objective element.”

95. In ROYAL ENFIELD Trade Marks [2002] RPC 24, it was held by the Appointed Person Mr. Simon Thorley QC that:

“An allegation that a trade mark had been applied for in bad faith was a serious allegation and tantamount to an allegation of a form of commercial fraud. Such a plea should not be lightly made and, if made, it should be distinctly alleged and proved. It was not permissible to leave fraud to be inferred from the facts and the same considerations applied to an allegation of bad faith made under section 3(6) of the Trade Marks Act 1994”.

96. In Brutt Trade Marks [2007] RPC 19, the Appointed Person therein referred to the above passage in Royal Enfield and further stated that:

“I agree with Mr. Thorley that allegation of bad faith is a serious allegation which must be distinctly alleged and which should not be made unless it can be properly pleaded. I also agree that it must be distinctly proved: as discussed above, the standard of proof is on the balance of probabilities, but cogent evidence is required due to the seriousness of the allegation. It is not enough to prove facts which are also consistent with good faith.”

97. Under paragraph 20 of the Amended Grounds of Opposition, the Opponent pleaded that the Applicant ought to have known about the Opponent’s Mark INTEL INSIDE and the Opponent’s “{word} + inside” format marks. It was alleged that the Applicant has copied the Opponent’s “{word}+ INSIDE” format marks with a view to free riding on the coat tails of and benefitting from the reputation of the Opponent in the Opponent’s Mark and the “{word}+ INSIDE” format marks. Moreover, at paragraphs 18, 40 and 41 of the Written Submissions, the agent submitted that the Applicant did not explain why it adopted the “{word} + inside” format mark nor provided any evidence to support its application. The subject application was said to have been made in bad faith.

30

98. An allegation of bad faith is a serious allegation which must be distinctly alleged and which should not be made unless it can be properly pleaded. Despite the allegation of copying of the Opponent’s Mark or the “{word} + INSIDE” mark, there is a lack of particulars in support of such allegation. Such allegation is in fact based on the claim that the two marks are similar. At paragraph 4 of the Counter Statement, the Applicant expressly pleaded that the Applicant devises the subject mark in good faith. As I have found that the subject mark as a whole is dissimilar to the Opponent’s Marks Nos.1, 2, 4, 5, 7, 8, 9, 10 and 11, I do not find the use of the word “inside”, being a non-dominant element of the subject mark, by the Applicant alongside the more distinctive element together with the devices, sufficient for me to infer or conclude that the subject mark was devised by copying of any of the Opponent’s marks.

99. In the circumstances, there is no basis for concluding that the Applicant’s decision to apply for registration of the subject mark in respect of the subject goods would be regarded as having been made in bad faith by persons adopting proper standards. The ground of opposition under section 11(5)(b) of the Ordinance must fail.

Opposition under section 11(4)(b) of the Ordinance

100. Section 11(4)(b) of the Ordinance provides that a trade mark shall not be registered if it is likely to deceive the public.

101. It has been well established that section 11(4)(b) of the Ordinance is intended to apply where the alleged deception arises from the nature of the mark itself, as opposed to that arising from the similarity of marks belonging to different parties. In the circumstances, the Opponent’s objection under section 11(4)(b) is misconceived and is bound to fail.

Conclusion

102. The opposition against the subject application fails as none of the Opponent’s grounds of opposition has been made out.

Costs

31

103. As the opposition has failed, I award the Applicant costs. Subject to any representations as to the amount of costs or calling for special treatment, which either party makes within one month from the date of this decision, costs will be calculated with reference to the usual scale in Part I of the First Schedule to Order 62 of the Rules of the High Court (Cap. 4A) as applied to trade mark matters, unless otherwise agreed between the parties.

(Winnie WH Ng) for Registrar of Trade Marks 6 June 2019

32 Annex 1 The specification of Marks Nos.1, 2, 4, 5, 7, 8, 9, 10 and 11

Mark No. Specification Mark No.1 Class 41 education and entertainment services in the field of computers, computing, computer technology, computer hardware and software use, computer networking, Internet navigation, computer information management and computer purchases; computer entertainment services provided by means of the Internet; conducting classes, seminars, conferences, and workshops in the field of computers, computing, computer technology, information technology, computer and software use, Internet navigation, computer management, and computer purchases; dissemination of educational material relating to computers, computing, computer technology, information technology, computer and software use, Internet navigation, computer management, and computer purchases; dissemination of course materials relating to computers, computing, computer technology, information technology, computer and software use, Internet navigation, computer management, and computer purchases; distribution (other than transportation) of video educational tapes and disks; computer based educational services; audio-visual display presentation services for entertainment or educational purposes; children's entertainment services; provision of interactive and non-interactive information and advisory services in the fields of education and entertainment; all included in Class 41. Mark No.2 Class 9 scientific, electric, electronic, photographic, measuring, signalling, checking (supervision), and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound, images and/or data; magnetic data carriers, recording discs; calculating machines, data processing equipment and computers;

computer hardware; computer firmware; computer software; semiconductors;

microprocessors; integrated circuits; microcomputers; computer chipsets; computer motherboards and daughterboards; computer graphics boards; networking hardware; computer network adaptors, switches, routers and hubs; computer peripheral devices and electronic apparatus for use with computers; keyboards; trackballs; computer mouse devices; computer input devices; monitors; video apparatus; video circuit boards; apparatus and equipment for recording, processing, receiving, reproducing, transmitting, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images, graphics, and data; recorded computer algorithm programs for the compression and decompression of data; computer component testing and calibrating apparatus; set-top boxes; computer programs for network management; computer utility programs; computer operating system software; computer programs for recording, processing, receiving, reproducing, transmitting, modifying, compressing, decompressing, broadcasting, merging, and/or enhancing sound, video, images, graphics, and data; computer programs for web pages design; computer programs for accessing and using the Internet; telecommunications apparatus and instruments; apparatus and equipment for use in video-conferencing, teleconferencing, document exchange and editing; cameras; headsets; parts, fittings, and testing apparatus for all the aforesaid goods; and user manuals in electronically readable, machine readable or computer readable form for use with, and sold as a unit with, all the aforesaid goods; all included in Class 9.

Mark No.4 Class 9 Computers; notebook computers; laptop computers; portable computers; handheld computers; personal digital assistants; personal media players; mobile telephones; smart phones; digital cameras; computer workstations; servers; computer hardware; computer and telecommunications networking hardware; computer network adaptors, switches, routers and hubs; wireless and wired modems and communication cards and devices;

33 computer firmware for use in operating and maintaining the computer system; computer software; semiconductors; microprocessors; integrated circuits; central processing units; microcomputers; computer chipsets; computer motherboards and daughterboards; computer graphics boards; computer peripherals and electronic apparatus for use with computers; scientific, navigation, measuring, electric, photographic, film, optical, scales, measuring apparatus, signaling apparatus, regulating apparatus, rescue apparatus and teaching apparatus and instruments; tape recorders, records; apparatus and instruments, all for monitoring, detecting, testing and measuring; floppy disc driving apparatus; electronic security apparatus; surveillance apparatus; electronic apparatus and instruments, all for recognizing digital and analogue codes; control apparatus for all the aforesaid goods; computer operating system software; computer operating programs; computer system extensions, tools and utilities in the field of application software for connecting personal computers, networks, telecommunications apparatus and global computer network applications; computerized telecommunications and networking equipment consisting of operating system software, modems, cameras, headsets, microphones, cables and adaptors; computer games; racks, cabinets and holders, all adapted for the aforesaid goods; audio and video graphics for real time information and image transfer, transmission, reception, processing and digitizing; computer firmware; minicomputers; computer installations; memory boards; data processing apparatus; cellular telephones; portable and handheld personal organizers; integrated circuit memories; integrated circuit chips; chip- sets; semiconductor processors; semiconductor processor chips; semiconductor chips; printed circuit boards; electronic circuit boards; computer memory devices; operating systems; computer programs; microcontrollers; data processors; semiconductor memory devices; video circuit boards; audio circuit boards; audio-video circuit boards; video graphic accelerators; multimedia accelerators; video processors; video processor boards; cards, discs, tapes, wires, records, microchips and electronic circuits, all for the recordal of data; modems; apparatus and instruments, all for processing, storage, retrieval, transmission, display, input, output, compressing, decompressing, modifying, broadcasting and printout of data; computer input and output devices; work stations (computers); data memories; storage devices; registers systems security, set electronic chips; components for computers printed circuits; voice accelerators; data, image and video accelerators; flash memories; flash memory devices; memory systems for computers; telecommunications equipment and computer networks, namely processing and operating systems; headsets; mouses; microphones; cables and adapters; computer terminals and printers for use therewith; video display units; telecommunications apparatus and instruments; cameras; computer hardware and software for the transmission and receipt of facsimiles; computer hardware and software for the development, maintenance, and use of local and wide area computer networks; computer hardware and software for the development, maintenance, and use of interactive audio-video computer conference systems; computer hardware and software for the receipt, display, and use of broadcast video, audio, and digital data signals; routers; hubs; switches; apparatus for testing and programming integrated circuits; peripheral memory apparatus; computer firmware, namely computer operating systems software; fixed function servers; semiconductor devices; computer hardware and software for creating, facilitating, and managing remote access to and communication with local area networks (LANs), virtual private networks (VPN), wide area networks (WANs) and global computer networks; server operating software; computer software for use in providing multiple user access to a global computer information network for searching, retrieving, transferring, manipulating and disseminating a wide range of information, computer software tools for the facilitation of third party software applications; computer hardware and software for wireless network communications; instructional materials relating to computers recorded magnetically, electronically or optically; electronic apparatus for use with computers; keyboards; trackballs; monitors; video apparatus; video systems products; apparatus and

34 equipment for recording, processing, storage, retrieval, receiving, reproducing, transmitting, display, input, output, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images and graphics; algorithms for the compression and/or decompression of data; computer component testing and calibrating apparatus; set-top boxes; computer programs for network management; computer utility programs; computer operating system software; computer programs for recording, processing, receiving, reproducing, transmitting, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images, graphics and data; computer programs for web page design; computer programs for accessing and using the internet; telecommunications apparatus and equipment for use in video- conferencing, teleconferencing, document exchange and editing; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers; calculating machines; internet and web servers; internet and web cache-servers; web and internet-terminals; instrument for internet and web access, wireless and remote computer peripheral devices; peripheral memory systems; computer disks; computer disk drives; mouse pads; loudspeakers; amplifiers; equalizers; multimedia speaker system; signal processors; digital audio signal processors; headphones; earphones; electronic, cinematographic and checking (supervision) apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; audio cassettes; compact discs; video cassettes; laser video discs; digital video discs; digital versatile discs; CD-ROMs; motion picture films; compact disc players; compact disc recorders; DVD players; DVD recorders; video cassette players; video cassette recorders; audio cassette players; audio cassette recorders; MP3 players; MP3 recorders; telephones; parts, fittings, and testing apparatus for all the aforesaid goods; and manuals sold as a unit and downloadable from a global computer network; downloadable electronic publications in the area of computers, telecommunications, telephony, and wireless communications; user manuals in electronically readable, computer readable or machine readable form for use with, and sold as a unit with, all the aforesaid goods. Mark No.5 Class 9 Computers; notebook computers; laptop computers; portable computers; handheld computers; personal digital assistants; personal media players; mobile telephones; smart phones; digital cameras; servers; computer hardware; computer and telecommunications networking hardware; computer network adaptors, switches, routers and hubs; wireless and wired modems and communication cards and devices; computer firmware for use in operating and maintaining the computer system; computer software; semiconductors; microprocessors; integrated circuits; central processing units; microcomputers; computer chipsets; computer motherboards; computer graphics boards; computer peripherals and electronic apparatus for use with computers; parts, fittings, and testing apparatus for all the aforesaid goods; downloadable electronic publications in the area of computers, telecommunications, telephony, and wireless communications; digital video recorders; set top and set back boxes; televisions; scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life- saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment; fire- extinguishing apparatus. Mark No.7 Class 9 Computers; notebook computers; laptop computers; portable computers; handheld computers; personal digital assistants; personal media players; mobile telephones; smart phones; digital cameras; computer workstations; servers; computer hardware; computer and telecommunications networking hardware; communication devices; computer

35 network adaptors, switches, routers and hubs; wireless and wired modems and communication cards and devices; computer firmware for use in operating and maintaining the computer system; computer software; semiconductors; microprocessors; integrated circuits; central processing units; microcomputers; computer chipsets; computer motherboards and daughterboards; computer graphics boards; computer peripherals and electronic apparatus for use with computers; scientific, navigation, measuring, electric, photographic, film, optical, scales, measuring apparatus, signaling apparatus, regulating apparatus, rescue apparatus and teaching apparatus and instruments; tape recorders, records; apparatus and instruments, all for monitoring, detecting, testing and measuring; floppy disc driving apparatus; electronic security apparatus; surveillance apparatus; electronic apparatus and instruments, all for recognizing digital and analogue codes; control apparatus for all the aforesaid goods; computer operating system software; computer operating programs; computer system extensions, tools and utilities in the field of application software for connecting personal computers, networks, telecommunications apparatus and global computer network applications; computerized telecommunications and networking equipment consisting of operating system software, modems, cameras, headsets, microphones, cables and adaptors; computer games; racks, cabinets and holders, all adapted for the aforesaid goods; audio and video graphics for real time information and image transfer, transmission, reception, processing and digitizing; computer firmware; minicomputers; computer installations; memory boards; data processing apparatus; cellular telephones; portable and handheld personal organizers; integrated circuit memories; integrated circuit chips; chip-sets; semiconductor processors; semiconductor processor chips; semiconductor chips; printed circuit boards; electronic circuit boards; computer memory devices; operating systems; computer programs; microcontrollers; data processors; semiconductor memory devices; video circuit boards; audio circuit boards; audio-video circuit boards; video graphic accelerators; multimedia accelerators; video processors; video processor boards; cards, discs, tapes, wires, records, microchips and electronic circuits, all for the recordal of data; modems; apparatus and instruments, all for processing, storage, retrieval, transmission, display, input, output, compressing, decompressing, modifying, broadcasting and printout of data; computer input and output devices; work stations (computers); data memories; storage devices; registers systems security, set electronic chips; components for computers printed circuits; voice accelerators; data, image and video accelerators; flash memories; flash memory devices; memory systems for computers; telecommunications equipment and computer networks, namely processing and operating systems; headsets; mouses; microphones; cables and adapters; computer terminals and printers for use therewith; video display units; telecommunications apparatus and instruments; cameras; computer hardware and software for the transmission and receipt of facsimiles; computer hardware and software for the development, maintenance, and use of local and wide area computer networks; computer hardware and software for the development, maintenance, and use of interactive audio- video computer conference systems; computer hardware and software for the receipt, display, and use of broadcast video, audio, and digital data signals; routers; hubs; switches; apparatus for testing and programming integrated circuits; peripheral memory apparatus; computer firmware, namely computer operating systems software; fixed function servers; semiconductor devices; computer hardware and software for creating, facilitating, and managing remote access to and communication with local area networks (LANs), virtual private networks (VPN), wide area networks (WANs) and global computer networks; server operating software; computer software for use in providing multiple user access to a global computer information network for searching, retrieving, transferring, manipulating and disseminating a wide range of information, computer software tools for the facilitation of third party software applications; computer hardware and software for wireless network communications; instructional materials relating to computers recorded magnetically, electronically or optically; electronic apparatus for use with computers;

36 keyboards; trackballs; monitors; video apparatus; video systems products; apparatus and equipment for recording, processing, storage, retrieval, receiving, reproducing, transmitting, display, input, output, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images and graphics; algorithms for the compression and/or decompression of data; computer component testing and calibrating apparatus; set-top boxes; computer programs for network management; computer utility programs; computer operating system software; computer programs for recording, processing, receiving, reproducing, transmitting, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images, graphics and data; computer programs for web page design; computer programs for accessing and using the internet; telecommunications apparatus and equipment for use in video- conferencing, teleconferencing, document exchange and editing; magnetic data carriers, recording discs; mechanisms for coin-operated apparatus; cash registers; calculating machines; internet and web servers; internet and web cache-servers; web and internet- terminals; instrument for internet and web access, wireless and remote computer peripheral devices; peripheral memory systems; computer disks; computer disk drives; mouse pads; loudspeakers; amplifiers; equalizers; multimedia speaker system; signal processors; digital audio signal processors; headphones; earphones; electronic, cinematographic and checking (supervision) apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; audio cassettes; compact discs; video cassettes; laser video discs; digital video discs; digital versatile discs; CD- ROMs; motion picture films; compact disc players; compact disc recorders; DVD players; DVD recorders; video cassette players; video cassette recorders; audio cassette players; audio cassette recorders; MP3 players; MP3 recorders; telephones; parts, fittings, and testing apparatus for all the aforesaid goods; and manuals sold as a unit and downloadable from a global computer network; downloadable electronic publications in the area of computers, telecommunications, telephony, and wireless communications; user manuals in electronically readable, computer readable or machine readable form for use with, and sold as a unit with, all the aforesaid good Mark No.8 Class 9 Computers; notebook computers; laptop computers; portable computers; handheld computers; personal digital assistants; personal media players; mobile telephones; smart phones; digital cameras; computer workstations; servers; computer hardware; computer and telecommunications networking hardware; communication devices; computer network adaptors, switches, routers and hubs; wireless and wired modems and communication cards and devices; computer firmware for use in operating and maintaining the computer system; computer software; semiconductors; microprocessors; integrated circuits; central processing units; microcomputers; computer chipsets; computer motherboards and daughterboards; computer graphics boards; computer peripherals and electronic apparatus for use with computers; scientific, navigation, measuring, electric, photographic, film, optical, scales, measuring apparatus, signaling apparatus, regulating apparatus, rescue apparatus and teaching apparatus and instruments; tape recorders, records; apparatus and instruments, all for monitoring, detecting, testing and measuring; floppy disc driving apparatus; electronic security apparatus; surveillance apparatus; electronic apparatus and instruments, all for recognizing digital and analogue codes; control apparatus for all the aforesaid goods; computer operating system software; computer operating programs; computer system extensions, tools and utilities in the field of application software for connecting personal computers, networks, telecommunications apparatus and global computer network applications; computerized telecommunications and networking equipment consisting of operating system software, modems, cameras, headsets, microphones, cables and adaptors; computer games; racks, cabinets and holders, all adapted for the aforesaid goods; audio and video graphics for real time information and image transfer, transmission, reception, processing and digitizing; computer firmware;

37 minicomputers; computer installations; memory boards; data processing apparatus; cellular telephones; portable and handheld personal organizers; integrated circuit memories; integrated circuit chips; chip-sets; semiconductor processors; semiconductor processor chips; semiconductor chips; printed circuit boards; electronic circuit boards; computer memory devices; operating systems; computer programs; microcontrollers; data processors; semiconductor memory devices; video circuit boards; audio circuit boards; audio-video circuit boards; video graphic accelerators; multimedia accelerators; video processors; video processor boards; cards, discs, tapes, wires, records, microchips and electronic circuits, all for the recordal of data; modems; apparatus and instruments, all for processing, storage, retrieval, transmission, display, input, output, compressing, decompressing, modifying, broadcasting and printout of data; computer input and output devices; work stations (computers); data memories; storage devices; registers systems security, set electronic chips; components for computers printed circuits; voice accelerators; data, image and video accelerators; flash memories; flash memory devices; memory systems for computers; telecommunications equipment and computer networks, namely processing and operating systems; headsets; mouses; microphones; cables and adapters; computer terminals and printers for use therewith; video display units; telecommunications apparatus and instruments; cameras; computer hardware and software for the transmission and receipt of facsimiles; computer hardware and software for the development, maintenance, and use of local and wide area computer networks; computer hardware and software for the development, maintenance, and use of interactive audio- video computer conference systems; computer hardware and software for the receipt, display, and use of broadcast video, audio, and digital data signals; routers; hubs; switches; apparatus for testing and programming integrated circuits; peripheral memory apparatus; computer firmware, namely computer operating systems software; fixed function servers; semiconductor devices; computer hardware and software for creating, facilitating, and managing remote access to and communication with local area networks (LANs), virtual private networks (VPN), wide area networks (WANs) and global computer networks; server operating software; computer software for use in providing multiple user access to a global computer information network for searching, retrieving, transferring, manipulating and disseminating a wide range of information, computer software tools for the facilitation of third party software applications; computer hardware and software for wireless network communications; instructional materials relating to computers recorded magnetically, electronically or optically; electronic apparatus for use with computers; keyboards; trackballs; monitors; video apparatus; video systems products; apparatus and equipment for recording, processing, storage, retrieval, receiving, reproducing, transmitting, display, input, output, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images and graphics; algorithms for the compression and/or decompression of data; computer component testing and calibrating apparatus; set-top boxes; computer programs for network management; computer utility programs; computer operating system software; computer programs for recording, processing, receiving, reproducing, transmitting, modifying, compressing, decompressing, broadcasting, merging and/or enhancing sound, video images, graphics and data; computer programs for web page design; computer programs for accessing and using the internet; telecommunications apparatus and equipment for use in video- conferencing, teleconferencing, document exchange and editing; magnetic data carriers, recording discs; mechanisms for coin-operated apparatus; cash registers; calculating machines; internet and web servers; internet and web cache-servers; web and internet- terminals; instrument for internet and web access, wireless and remote computer peripheral devices; peripheral memory systems; computer disks; computer disk drives; mouse pads; loudspeakers; amplifiers; equalizers; multimedia speaker system; signal processors; digital audio signal processors; headphones; earphones; electronic, cinematographic and checking (supervision) apparatus and instruments; apparatus for

38 recording, transmission or reproduction of sound or images; audio cassettes; compact discs; video cassettes; laser video discs; digital video discs; digital versatile discs; CD- ROMs; motion picture films; compact disc players; compact disc recorders; DVD players; DVD recorders; video cassette players; video cassette recorders; audio cassette players; audio cassette recorders; MP3 players; MP3 recorders; telephones; parts, fittings, and testing apparatus for all the aforesaid goods; and manuals sold as a unit and downloadable from a global computer network; downloadable electronic publications in the area of computers, telecommunications, telephony, and wireless communications; user manuals in electronically readable, computer readable or machine readable form for use with, and sold as a unit with, all the aforesaid goods. Mark No.9 Class 9 (A) COMPUTERS; HANDHELD COMPUTERS; MINICOMPUTERS; COMPUTER HARDWARE; INTEGRATED CIRCUITS; INTEGRATED CIRCUIT MEMORIES; INTEGRATED CIRCUIT CHIPS; COMPUTER CHIP SETS; SEMICONDUCTOR PROCESSORS; SEMICONDUCTOR PROCESSOR CHIPS; SEMICONDUCTOR CHIPS; MICROPROCESSORS; PRINTED CIRCUIT BOARDS; PRINTED CIRCUITS, NAMELY INTEGRATED CIRCUIT BOARDS, PRINTED CIRCUIT BOARDS AND ELECTRICAL CIRCUIT BOARDS; ELECTRONIC CIRCUIT BOARDS; COMPUTER MOTHERBOARDS; COMPUTER MEMORIES; MICROCONTROLLERS; DATA PROCESSORS; CENTRAL PROCESSING UNITS; SEMICONDUCTOR MEMORY DEVICES, NAMELY, SEMICONDUCTOR MEMORIES AND SEMICONDUCTOR MEMORY UNITS; SOFTWARE PROGRAMMABLE PROCESSORS; DIGITAL AND OPTICAL MICROPROCESSORS; COMPUTER PERIPHERALS; VIDEO CIRCUIT BOARDS; AUDIO CIRCUIT BOARDS; AUDIO-VIDEO CIRCUIT BOARDS; VIDEO GRAPHIC ACCELERATORS; MULTIMEDIA ACCELERATORS; VIDEO PROCESSORS; VIDEOPROCESSOR BOARDS; DATA MEMORIES; ELECTRONIC SECURITY APPARATUS AND SURVEILLANCE APPARATUS, NAMELY, COMPUTER HARDWARE, COMPUTER CHIPS AND MICROPROCESSORS OPTIMIZED FOR ELECTRONIC SECURITY SURVEILLANCE; ALGORITHM SOFTWARE PROGRAMS FOR THE OPERATION AND CONTROL OF COMPUTERS; COMPUTER OPERATING SYSTEM SOFTWARE; COMPUTER OPERATING SYSTEMS; COMPUTER SYSTEM EXTENSIONS, TOOLS AND UTILITIES IN THE FIELD OF APPLICATION SOFTWARE FOR CONNECTING PERSONAL COMPUTERS, NETWORKS, TELECOMMUNICATIONS APPARATUS AND GLOBAL COMPUTER NETWORK APPLICATIONS; COMPUTERIZED TELECOMMUNICATIONS AND NETWORKING EQUIPMENT CONSISTING OF OPERATING SYSTEM SOFTWARE; COMPUTER HARDWARE AND SOFTWARE FOR ENHANCING AND PROVIDING REAL-TIME TRANSFER, TRANSMISSION, RECEPTION, PROCESSING AND DIGITIZING OF AUDIO AND VIDEO GRAPHICS INFORMATION; COMPUTER FIRMWARE, NAMELY, COMPUTER OPERATING SYSTEM SOFTWARE, COMPUTER UTILITY SOFTWARE AND OTHER COMPUTER SOFTWARE USED TO MAINTAIN AND OPERATE COMPUTER SYSTEMS; COMPUTER INSTALLATIONS; MEMORY BOARDS; PERSONAL DIGITAL ASSISTANTS; PORTABLE AND HANDHELD ELECTRONIC PERSONAL ORGANIZERS; STORAGE DEVICES, NAMELY, JUMP DRIVES, FLASH DRIVES AND THUMB DRIVES; SECURITY SYSTEMS FOR COMPUTER HARDWARE AND SOFTWARE, NAMELY, FIREWALLS, NETWORK ACCESS SERVER HARDWARE FOR CREATING AND MAINTAINING FIREWALLS, VIRTUAL PRIVATE NETWORK (VPN) COMPUTER HARDWARE AND COMPUTER SERVER OPERATING SOFTWARE FOR CREATING AND MAINTAINING FIREWALLS; SOFTWARE FOR ENSURING THE SECURITY OF COMPUTER NETWORKS; SOFTWARE FOR ACCESS CONTROL AND SECURITY; COMPUTER HARDWARE AND SOFTWARE FOR USE IN PROTECTING COMPUTER NETWORKS FROM

39

DATA THEFT OR DAMAGE BY UNAUTHORIZED USERS; COMPONENTS FOR COMPUTERS; COMPUTER VOICE ACCELERATOR BOARDS; COMPUTER VOICE, DATA, IMAGE AND VIDEO ACCELERATOR BOARDS; FLASH MEMORY BOARDS AND FLASH MEMORY CARDS; TELECOMMUNICATIONS EQUIPMENT AND COMPUTER NETWORKS, NAMELY PROCESSING AND OPERATING SYSTEMS; TELECOMMUNICATIONS APPARATUS AND INSTRUMENTS, NAMELY, COMPUTER ROUTERS, HUBS, SERVERS AND SWITCHES; COMPUTER HARDWARE AND SOFTWARE FOR THE DEVELOPMENT, MAINTENANCE, AND USE OF LOCAL AND WIDE AREA COMPUTER NETWORKS; SET-TOP BOXES; ELECTRONIC CONTROL DEVICES FOR THE INTERFACE AND CONTROL OF COMPUTERS AND GLOBAL COMPUTER AND TELECOMMUNICATIONS NETWORKS WITH TELEVISION AND CABLE BROADCASTS AND EQUIPMENT; APPARATUS FOR TESTING AND PROGRAMMING INTEGRATED CIRCUITS; COMPUTER PERIPHERAL MEMORY APPARATUS AND DEVICES; FIXED FUNCTION COMPUTER SERVERS; COMPUTER NETWORKING HARDWARE; COMPUTER HARDWARE AND SOFTWARE FOR CREATING, FACILITATING, AND MANAGING REMOTE ACCESS TO AND COMMUNICATION WITH LOCAL AREA NETWORKS (LANS), VIRTUAL PRIVATE NETWORKS (VPN), WIDE AREA NETWORKS (WANS) AND GLOBAL COMPUTER NETWORKS; ROUTER, SWITCH, HUB AND SERVER OPERATING SOFTWARE; COMPUTER SOFTWARE AND HARDWARE FOR USE IN PROVIDING MULTIPLE USER ACCESS TO A GLOBAL COMPUTER INFORMATION NETWORK FOR SEARCHING, RETRIEVING, TRANSFERRING, MANIPULATING AND DISSEMINATING A WIDE RANGE OF INFORMATION; COMPUTER SOFTWARE TOOLS FOR THE FACILITATION OF THIRD PARTY SOFTWARE APPLICATIONS; COMPUTER HARDWARE AND SOFTWARE FOR WIRELESS NETWORK COMMUNICATIONS; DOWNLOADABLE ELECTRONIC PUBLICATIONS IN THE NATURE OF NEWSLETTERS, BOOKS, MAGAZINES, JOURNALS, BROCHURES AND WHITE PAPERS IN THE AREA OF ELECTRONICS, SEMICONDUCTORS, INTEGRATED ELECTRONIC APPARATUS AND DEVICES, COMPUTERS, TELECOMMUNICATIONS, ENTERTAINMENT, TELEPHONY, AND WIRED AND WIRELESS TELECOMMUNICATIONS; STRUCTURAL PARTS AND FITTINGS FOR ALL THE AFORESAID GOODS; ELECTRONIC INSTRUCTIONAL MANUALS SOLD AS A UNIT WITH THE AFOREMENTIONED GOODS AND ELECTRONIC INSTRUCTIONAL MANUALS DOWNLOADABLE FROM A GLOBAL COMPUTER NETWORK; SCIENTIFIC, NAUTICAL, SURVEYING, PHOTOGRAPHIC, CINEMATOGRAPHIC, OPTICAL, WEIGHING, MEASURING, SIGNALLING, CHECKING (SUPERVISION), LIFE- SAVING AND TEACHING APPARATUS AND INSTRUMENTS; APPARATUS AND INSTRUMENTS FOR CONDUCTING, SWITCHING, TRANSFORMING, ACCUMULATING, REGULATING OR CONTROLLING ELECTRICITY; APPARATUS FOR RECORDING, TRANSMISSION OR REPRODUCTION OF SOUND OR IMAGES; MAGNETIC DATA CARRIERS, RECORDING DISCS; COMPACT DISCS, DVDS AND OTHER DIGITAL RECORDING MEDIA; MECHANISMS FOR COIN-OPERATED APPARATUS; CASH REGISTERS, CALCULATING MACHINES, DATA PROCESSING EQUIPMENT; COMPUTER SOFTWARE; FIRE-EXTINGUISHING APPARATUS; (B) SEMI-CONDUCTOR MEMORY DEVICES; TELECOMMUNICATIONS APPARATUS AND INSTRUMENTS. Class 41 TRAINING SERVICES IN THE FIELDS OF NETWORKS, NETWORK SYSTEM DESIGN, NETWORK OPERATION, NETWORK MAINTENANCE, NETWORK TESTING, NETWORK PROTOCOLS, NETWORK MANAGEMENT, NETWORK

40 ENGINEERING, COMPUTERS, SOFTWARE, MICROPROCESSORS AND INFORMATION TECHNOLOGY; ENTERTAINMENT SERVICES, NAMELY, ORGANIZING EXHIBITIONS FOR COMPUTER GAMING, PROVIDING ON-LINE COMPUTER GAMES, AND ORGANIZING COMMUNITY SPORTING AND CULTURAL EVENTS; PROVIDING ON-LINE PUBLICATIONS IN THE NATURE OF MAGAZINES, NEWSLETTERS, JOURNALS, BOOKS AND BROCHURES IN THE AREAS OF PHOTOGRAPHY, IMAGING AND RELATED GOODS AND SERVICES; EDUCATION SERVICES, NAMELY, PROVIDING SEMINARS, COURSES AND TUTORIAL SESSIONS IN THE FIELD OF DIGITAL IMAGING VIA GLOBAL COMPUTER NETWORKS; PROVIDING A DATABASE OF DIGITAL IMAGES ON- LINE FOR USE BY CONSUMERS; PROVIDING AN ON-LINE LIBRARY OF DIGITAL IMAGES WHICH MAY BE SHARED BY USERS; PHOTOGRAPHIC AND IMAGE LIBRARY SERVICES; COMPUTERIZED ON-LINE EDUCATION SERVICES, NAMELY, PROVIDING CLASSES, SEMINARS, TUTORIAL SESSIONS, CONFERENCES AND WORKSHOPS IN THE FIELD OF COMPUTERS, COMPUTER HARDWARE, MICROPROCESSORS, SOFTWARE AND COMPUTER NETWORKS; COMPUTERIZED ON-LINE TRAINING SERVICES IN THE FIELD OF COMPUTERS, COMPUTER HARDWARE, MICROPROCESSORS, SOFTWARE AND COMPUTER NETWORKS; EDUCATIONAL SERVICES, NAMELY, PROVIDING INTERACTIVE TUTORIAL SESSIONS AND COURSES IN THE NATURE OF HOW-TO GUIDES, TIPS AND TECHNIQUES, EXPERT GUIDANCE AND ADVICE, ALL RELATING TO THE PURCHASE, USE, CARE, MAINTENANCE, SUPPORT, UPGRADING, UPDATING AND CONFIGURING OF COMPUTER HARDWARE, COMPUTER SOFTWARE, COMPUTER NETWORKS, TELECONFERENCING AND COMMUNICATIONS GOODS AND SERVICES; EDUCATIONAL SERVICES, NAMELY, CONDUCTING CLASSES, SEMINARS, CONFERENCES AND ONLINE EDUCATIONAL FORUMS IN THE FIELD OF COMPUTER AND SOFTWARE USE, NAVIGATION OVER GLOBAL COMPUTER NETWORKS, COMPUTER SCIENCE AND TECHNOLOGY, COMPUTER MANAGEMENT, AND DISTRIBUTING COURSE MATERIALS IN CONNECTION THEREWITH; DEVELOPING AND DISSEMINATING EDUCATIONAL MATERIALS DESIGNED TO INCREASE TECHNOLOGY LITERACY AMONG STUDENTS; TRAINING SERVICES FOR NETWORK HARDWARE AND SOFTWARE; TRAINING SERVICES IN THE FIELD OF ONLINE BUSINESS SOLUTIONS; EDUCATION; PROVIDING OF TRAINING; ENTERTAINMENT; SPORTING AND CULTURAL ACTIVITIES. Class 42 COMPUTER NETWORK MANAGEMENT SERVICES, NAMELY, MONITORING OF NETWORK SYSTEMS FOR TECHNICAL PURPOSES; HOSTING OF DIGITAL CONTENT ON THE INTERNET; COMPUTER NETWORK MONITORING SERVICES, NAMELY, PROVIDING INFORMATION ON THE OPERATION OF COMPUTER NETWORKS; CUSTOMIZATION OF WEB SOFTWARE, AND COMPUTER USER INTERFACE DESIGN FOR OTHERS; CONSULTING SERVICES IN THE FIELD OF COMPUTERS AND WIRELESS COMPUTING; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR ENHANCING AND PROVIDING REAL-TIME TRANSFER, TRANSMISSION, RECEPTION, PROCESSING AND DIGITIZING OF AUDIO AND VIDEO GRAPHICS INFORMATION; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR PROCESSING, STORAGE, RETRIEVAL, TRANSMISSION, DISPLAY, INPUT, OUTPUT, COMPRESSING, DECOMPRESSING, MODIFYING, BROADCASTING AND PRINTOUT OF DATA; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR ENSURING THE SECURITY OF COMPUTER NETWORKS, FOR ACCESS CONTROL AND SECURITY, AND FOR

41

USE IN PROTECTING COMPUTER NETWORKS FROM DATA THEFT OR DAMAGE BY UNAUTHORIZED USERS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR THE DEVELOPMENT, MAINTENANCE, AND USE OF LOCAL AND WIDE AREA COMPUTER NETWORKS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR THE RECEIPT, DISPLAY, AND USE OF BROADCAST VIDEO, AUDIO, AND DIGITAL DATA SIGNALS; PROVIDING TEMPORARY USE OF NON- DOWNLOADABLE SOFTWARE FOR CREATING, FACILITATING, AND MANAGING REMOTE ACCESS TO AND COMMUNICATION WITH LOCAL AREA NETWORKS (LANS), VIRTUAL PRIVATE NETWORKS (VPN), WIDE AREA NETWORKS (WANS) AND GLOBAL COMPUTER NETWORKS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR USE IN PROVIDING MULTIPLE USER ACCESS TO A GLOBAL COMPUTER INFORMATION NETWORK FOR SEARCHING, RETRIEVING, TRANSFERRING, MANIPULATING AND DISSEMINATING A WIDE RANGE OF INFORMATION; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE TOOLS FOR THE FACILITATION OF THIRD PARTY SOFTWARE APPLICATIONS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR WIRELESS NETWORK COMMUNICATIONS; CUSTOM COMPUTER SOFTWARE AND HARDWARE DEVELOPMENT, DESIGN, AND CONSULTING SERVICES; DESIGNING AND DEVELOPING STANDARDS FOR OTHERS IN THE DESIGN AND IMPLEMENTATION OF COMPUTER SOFTWARE, COMPUTER HARDWARE AND TELECOMMUNICATIONS EQUIPMENT; PROVIDING CUSTOMERS AND TECHNICIANS WITH INFORMATION RELATING TO COMPUTER PROJECT MANAGEMENT; SCIENTIFIC AND TECHNOLOGICAL SERVICES AND RESEARCH AND DESIGN RELATING THERETO; INDUSTRIAL ANALYSIS AND RESEARCH SERVICES; DESIGN AND DEVELOPMENT OF COMPUTER HARDWARE AND SOFTWARE.

Mark No.10 Class 9 (A) COMPUTERS; HANDHELD COMPUTERS; MINICOMPUTERS; COMPUTER

HARDWARE; INTEGRATED CIRCUITS; INTEGRATED CIRCUIT MEMORIES; INTEGRATED CIRCUIT CHIPS; COMPUTER CHIP SETS; SEMICONDUCTOR PROCESSORS; SEMICONDUCTOR PROCESSOR CHIPS; SEMICONDUCTOR CHIPS; MICROPROCESSORS; PRINTED CIRCUIT BOARDS; PRINTED CIRCUITS, NAMELY INTEGRATED CIRCUIT BOARDS, PRINTED CIRCUIT BOARDS AND ELECTRICAL CIRCUIT BOARDS; ELECTRONIC CIRCUIT BOARDS; COMPUTER MOTHERBOARDS; COMPUTER MEMORIES; MICROCONTROLLERS; DATA PROCESSORS; CENTRAL PROCESSING UNITS; SEMICONDUCTOR MEMORY DEVICES, NAMELY, SEMICONDUCTOR MEMORIES AND SEMICONDUCTOR MEMORY UNITS; SOFTWARE PROGRAMMABLE PROCESSORS; DIGITAL AND OPTICAL MICROPROCESSORS; COMPUTER PERIPHERALS; VIDEO CIRCUIT BOARDS; AUDIO CIRCUIT BOARDS; AUDIO-VIDEO CIRCUIT BOARDS; VIDEO GRAPHIC ACCELERATORS; MULTIMEDIA ACCELERATORS; VIDEO PROCESSORS; VIDEOPROCESSOR BOARDS; DATA MEMORIES; ELECTRONIC SECURITY APPARATUS AND SURVEILLANCE APPARATUS, NAMELY, COMPUTER HARDWARE, COMPUTER CHIPS AND MICROPROCESSORS OPTIMIZED FOR ELECTRONIC SECURITY SURVEILLANCE; ALGORITHM SOFTWARE PROGRAMS FOR THE OPERATION AND CONTROL OF COMPUTERS; COMPUTER OPERATING SYSTEM SOFTWARE; COMPUTER OPERATING SYSTEMS; COMPUTER SYSTEM EXTENSIONS, TOOLS AND UTILITIES IN THE FIELD OF APPLICATION SOFTWARE FOR CONNECTING PERSONAL COMPUTERS, NETWORKS, TELECOMMUNICATIONS APPARATUS

42 AND GLOBAL COMPUTER NETWORK APPLICATIONS; COMPUTERIZED TELECOMMUNICATIONS AND NETWORKING EQUIPMENT CONSISTING OF OPERATING SYSTEM SOFTWARE; COMPUTER HARDWARE AND SOFTWARE FOR ENHANCING AND PROVIDING REAL-TIME TRANSFER, TRANSMISSION, RECEPTION, PROCESSING AND DIGITIZING OF AUDIO AND VIDEO GRAPHICS INFORMATION; COMPUTER FIRMWARE, NAMELY, COMPUTER OPERATING SYSTEM SOFTWARE, COMPUTER UTILITY SOFTWARE AND OTHER COMPUTER SOFTWARE USED TO MAINTAIN AND OPERATE COMPUTER SYSTEMS; COMPUTER INSTALLATIONS; MEMORY BOARDS; PERSONAL DIGITAL ASSISTANTS; PORTABLE AND HANDHELD ELECTRONIC PERSONAL ORGANIZERS; STORAGE DEVICES, NAMELY, JUMP DRIVES, FLASH DRIVES AND THUMB DRIVES; SECURITY SYSTEMS FOR COMPUTER HARDWARE AND SOFTWARE, NAMELY, FIREWALLS, NETWORK ACCESS SERVER HARDWARE FOR CREATING AND MAINTAINING FIREWALLS, VIRTUAL PRIVATE NETWORK (VPN) COMPUTER HARDWARE AND COMPUTER SERVER OPERATING SOFTWARE FOR CREATING AND MAINTAINING FIREWALLS; SOFTWARE FOR ENSURING THE SECURITY OF COMPUTER NETWORKS; SOFTWARE FOR ACCESS CONTROL AND SECURITY; COMPUTER HARDWARE AND SOFTWARE FOR USE IN PROTECTING COMPUTER NETWORKS FROM DATA THEFT OR DAMAGE BY UNAUTHORIZED USERS; COMPONENTS FOR COMPUTERS; COMPUTER VOICE ACCELERATOR BOARDS; COMPUTER VOICE, DATA, IMAGE AND VIDEO ACCELERATOR BOARDS; FLASH MEMORY BOARDS AND FLASH MEMORY CARDS; TELECOMMUNICATIONS EQUIPMENT AND COMPUTER NETWORKS, NAMELY PROCESSING AND OPERATING SYSTEMS; TELECOMMUNICATIONS APPARATUS AND INSTRUMENTS, NAMELY, COMPUTER ROUTERS, HUBS, SERVERS AND SWITCHES; COMPUTER HARDWARE AND SOFTWARE FOR THE DEVELOPMENT, MAINTENANCE, AND USE OF LOCAL AND WIDE AREA COMPUTER NETWORKS; SET-TOP BOXES; ELECTRONIC CONTROL DEVICES FOR THE INTERFACE AND CONTROL OF COMPUTERS AND GLOBAL COMPUTER AND TELECOMMUNICATIONS NETWORKS WITH TELEVISION AND CABLE BROADCASTS AND EQUIPMENT; APPARATUS FOR TESTING AND PROGRAMMING INTEGRATED CIRCUITS; COMPUTER PERIPHERAL MEMORY APPARATUS AND DEVICES; FIXED FUNCTION COMPUTER SERVERS; COMPUTER NETWORKING HARDWARE; COMPUTER HARDWARE AND SOFTWARE FOR CREATING, FACILITATING, AND MANAGING REMOTE ACCESS TO AND COMMUNICATION WITH LOCAL AREA NETWORKS (LANS), VIRTUAL PRIVATE NETWORKS (VPN), WIDE AREA NETWORKS (WANS) AND GLOBAL COMPUTER NETWORKS; ROUTER, SWITCH, HUB AND SERVER OPERATING SOFTWARE; COMPUTER SOFTWARE AND HARDWARE FOR USE IN PROVIDING MULTIPLE USER ACCESS TO A GLOBAL COMPUTER INFORMATION NETWORK FOR SEARCHING, RETRIEVING, TRANSFERRING, MANIPULATING AND DISSEMINATING A WIDE RANGE OF INFORMATION; COMPUTER SOFTWARE TOOLS FOR THE FACILITATION OF THIRD PARTY SOFTWARE APPLICATIONS; COMPUTER HARDWARE AND SOFTWARE FOR WIRELESS NETWORK COMMUNICATIONS; DOWNLOADABLE ELECTRONIC PUBLICATIONS IN THE NATURE OF NEWSLETTERS, BOOKS, MAGAZINES, JOURNALS, BROCHURES AND WHITE PAPERS IN THE AREA OF ELECTRONICS, SEMICONDUCTORS, INTEGRATED ELECTRONIC APPARATUS AND DEVICES, COMPUTERS, TELECOMMUNICATIONS, ENTERTAINMENT, TELEPHONY, AND WIRED AND WIRELESS TELECOMMUNICATIONS; STRUCTURAL PARTS AND FITTINGS FOR ALL THE AFORESAID GOODS; ELECTRONIC INSTRUCTIONAL MANUALS SOLD AS A UNIT WITH THE

43

AFOREMENTIONED GOODS AND ELECTRONIC INSTRUCTIONAL MANUALS DOWNLOADABLE FROM A GLOBAL COMPUTER NETWORK; SCIENTIFIC, NAUTICAL, SURVEYING, PHOTOGRAPHIC, CINEMATOGRAPHIC, OPTICAL, WEIGHING, MEASURING, SIGNALLING, CHECKING (SUPERVISION), LIFE- SAVING AND TEACHING APPARATUS AND INSTRUMENTS; APPARATUS AND INSTRUMENTS FOR CONDUCTING, SWITCHING, TRANSFORMING, ACCUMULATING, REGULATING OR CONTROLLING ELECTRICITY; APPARATUS FOR RECORDING, TRANSMISSION OR REPRODUCTION OF SOUND OR IMAGES; MAGNETIC DATA CARRIERS, RECORDING DISCS; COMPACT DISCS, DVDS AND OTHER DIGITAL RECORDING MEDIA; MECHANISMS FOR COIN-OPERATED APPARATUS; CASH REGISTERS, CALCULATING MACHINES, DATA PROCESSING EQUIPMENT; COMPUTER SOFTWARE; FIRE-EXTINGUISHING APPARATUS; (B) SEMI-CONDUCTOR MEMORY DEVICES; TELECOMMUNICATIONS APPARATUS AND INSTRUMENTS. Class 41 TRAINING SERVICES IN THE FIELDS OF NETWORKS, NETWORK SYSTEM DESIGN, NETWORK OPERATION, NETWORK MAINTENANCE, NETWORK TESTING, NETWORK PROTOCOLS, NETWORK MANAGEMENT, NETWORK ENGINEERING, COMPUTERS, SOFTWARE, MICROPROCESSORS AND INFORMATION TECHNOLOGY; ENTERTAINMENT SERVICES, NAMELY, ORGANIZING EXHIBITIONS FOR COMPUTER GAMING, PROVIDING ON-LINE COMPUTER GAMES, AND ORGANIZING COMMUNITY SPORTING AND CULTURAL EVENTS; PROVIDING ON-LINE PUBLICATIONS IN THE NATURE OF MAGAZINES, NEWSLETTERS, JOURNALS, BOOKS AND BROCHURES IN THE AREAS OF PHOTOGRAPHY, IMAGING AND RELATED GOODS AND SERVICES; EDUCATION SERVICES, NAMELY, PROVIDING SEMINARS, COURSES AND TUTORIAL SESSIONS IN THE FIELD OF DIGITAL IMAGING VIA GLOBAL COMPUTER NETWORKS; PROVIDING A DATABASE OF DIGITAL IMAGES ON- LINE FOR USE BY CONSUMERS; PROVIDING AN ON-LINE LIBRARY OF DIGITAL IMAGES WHICH MAY BE SHARED BY USERS; PHOTOGRAPHIC AND IMAGE LIBRARY SERVICES; COMPUTERIZED ON-LINE EDUCATION SERVICES, NAMELY, PROVIDING CLASSES, SEMINARS, TUTORIAL SESSIONS, CONFERENCES AND WORKSHOPS IN THE FIELD OF COMPUTERS, COMPUTER HARDWARE, MICROPROCESSORS, SOFTWARE AND COMPUTER NETWORKS; COMPUTERIZED ON-LINE TRAINING SERVICES IN THE FIELD OF COMPUTERS, COMPUTER HARDWARE, MICROPROCESSORS, SOFTWARE AND COMPUTER NETWORKS; EDUCATIONAL SERVICES, NAMELY, PROVIDING INTERACTIVE TUTORIAL SESSIONS AND COURSES IN THE NATURE OF HOW-TO GUIDES, TIPS AND TECHNIQUES, EXPERT GUIDANCE AND ADVICE, ALL RELATING TO THE PURCHASE, USE, CARE, MAINTENANCE, SUPPORT, UPGRADING, UPDATING AND CONFIGURING OF COMPUTER HARDWARE, COMPUTER SOFTWARE, COMPUTER NETWORKS, TELECONFERENCING AND COMMUNICATIONS GOODS AND SERVICES; EDUCATIONAL SERVICES, NAMELY, CONDUCTING CLASSES, SEMINARS, CONFERENCES AND ONLINE EDUCATIONAL FORUMS IN THE FIELD OF COMPUTER AND SOFTWARE USE, NAVIGATION OVER GLOBAL COMPUTER NETWORKS, COMPUTER SCIENCE AND TECHNOLOGY, COMPUTER MANAGEMENT, AND DISTRIBUTING COURSE MATERIALS IN CONNECTION THEREWITH; DEVELOPING AND DISSEMINATING EDUCATIONAL MATERIALS DESIGNED TO INCREASE TECHNOLOGY LITERACY AMONG STUDENTS; TRAINING SERVICES FOR NETWORK HARDWARE AND SOFTWARE; TRAINING SERVICES IN THE FIELD OF ONLINE BUSINESS

44 SOLUTIONS; EDUCATION; PROVIDING OF TRAINING; ENTERTAINMENT; SPORTING AND CULTURAL ACTIVITIES. Class 42 COMPUTER NETWORK MANAGEMENT SERVICES, NAMELY, MONITORING OF NETWORK SYSTEMS FOR TECHNICAL PURPOSES; HOSTING OF DIGITAL CONTENT ON THE INTERNET; COMPUTER NETWORK MONITORING SERVICES, NAMELY, PROVIDING INFORMATION ON THE OPERATION OF COMPUTER NETWORKS; CUSTOMIZATION OF WEB SOFTWARE, AND COMPUTER USER INTERFACE DESIGN FOR OTHERS; CONSULTING SERVICES IN THE FIELD OF COMPUTERS AND WIRELESS COMPUTING; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR ENHANCING AND PROVIDING REAL-TIME TRANSFER, TRANSMISSION, RECEPTION, PROCESSING AND DIGITIZING OF AUDIO AND VIDEO GRAPHICS INFORMATION; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR PROCESSING, STORAGE, RETRIEVAL, TRANSMISSION, DISPLAY, INPUT, OUTPUT, COMPRESSING, DECOMPRESSING, MODIFYING, BROADCASTING AND PRINTOUT OF DATA; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR ENSURING THE SECURITY OF COMPUTER NETWORKS, FOR ACCESS CONTROL AND SECURITY, AND FOR USE IN PROTECTING COMPUTER NETWORKS FROM DATA THEFT OR DAMAGE BY UNAUTHORIZED USERS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR THE DEVELOPMENT, MAINTENANCE, AND USE OF LOCAL AND WIDE AREA COMPUTER NETWORKS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR THE RECEIPT, DISPLAY, AND USE OF BROADCAST VIDEO, AUDIO, AND DIGITAL DATA SIGNALS; PROVIDING TEMPORARY USE OF NON- DOWNLOADABLE SOFTWARE FOR CREATING, FACILITATING, AND MANAGING REMOTE ACCESS TO AND COMMUNICATION WITH LOCAL AREA NETWORKS (LANS), VIRTUAL PRIVATE NETWORKS (VPN), WIDE AREA NETWORKS (WANS) AND GLOBAL COMPUTER NETWORKS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR USE IN PROVIDING MULTIPLE USER ACCESS TO A GLOBAL COMPUTER INFORMATION NETWORK FOR SEARCHING, RETRIEVING, TRANSFERRING, MANIPULATING AND DISSEMINATING A WIDE RANGE OF INFORMATION; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE TOOLS FOR THE FACILITATION OF THIRD PARTY SOFTWARE APPLICATIONS; PROVIDING TEMPORARY USE OF NON-DOWNLOADABLE SOFTWARE FOR WIRELESS NETWORK COMMUNICATIONS; CUSTOM COMPUTER SOFTWARE AND HARDWARE DEVELOPMENT, DESIGN, AND CONSULTING SERVICES; DESIGNING AND DEVELOPING STANDARDS FOR OTHERS IN THE DESIGN AND IMPLEMENTATION OF COMPUTER SOFTWARE, COMPUTER HARDWARE AND TELECOMMUNICATIONS EQUIPMENT; PROVIDING CUSTOMERS AND TECHNICIANS WITH INFORMATION RELATING TO COMPUTER PROJECT MANAGEMENT; SCIENTIFIC AND TECHNOLOGICAL SERVICES AND RESEARCH AND DESIGN RELATING THERETO; INDUSTRIAL ANALYSIS AND RESEARCH SERVICES; DESIGN AND DEVELOPMENT OF COMPUTER HARDWARE AND SOFTWARE.

Mark No.11 Class 9 Electronic monitoring apparatus and software; monitors, sensors, and wearable computing devices to measure, monitor, record, and transmit physiological and biometric data including heart rate, pulse, body temperature, perspiration, blood pressure, sleep patterns, time, distance, pace, calories burned, and other fitness measurements; computer and

45 smartphone interfaces; monitoring and sensing hardware and software for wearable computing devices that measure, monitor, record and transmit physiological and biometric data including heart rate, pulse, body temperature, perspiration, blood pressure, sleep patterns, time, distance, pace, calories burned, and other fitness measurements; wearable computing devices to measure biometric and physiological data; data processing devices for personal wear; wireless computing devices that transfer data to computers, personal digital assistants, smart phones, software applications and user interfaces through internet websites and other computer and electronic communication networks; smartphones; cell phones; personal digital assistances; computers; electronic tablets; computer and network servers; data processing equipment; data centers; wireless communication devices; local area network (LAN) and wide area network (WAN) hardware and operating software; software applications for computers, smartphones and computer tablets; semiconductors; integrated circuits; microprocessors; computer hardware; computer and telecommunications hardware and software; network interface cards (NICs); computer firmware; computer chipsets; computer motherboards; graphic chips; graphic boards; graphic cards; apparatus for recording, transmission, or reproduction of sound or images; devices, platforms and software used with or for cloud computing and the networking of appliances, services, and devices, and the interconnection of devices within the internet infrastructure; electronic charging devices; wireless electronic charging devices for accessories; computer anti-virus software and hardware. Class 10 Heart and sleep monitors; blood pressure monitors. Class 14 Jewelry, watches, bracelets and rings made with precious metals, stones, and gemstones that incorporate functions for monitoring and reporting fitness and activity data, including heart rate, pulse, temperature, perspiration, time, distance, pace, calories burned, and sleep patterns, as well as cumulative activity information; watches and bracelets that collect, store, transfer and communicate data to computers, personal digital assistants, smart phones, and software applications and interfaces through internet websites and computer and electronic communication networks. Class 25 Clothing; shirts, sweaters, sweatshirts, tops, pants, shorts, swim suits, shoes, socks, pajamas, undergarments, onesies, helmets, hats, gloves, scarves and wearable electronics (clothing, headgear, footwear) incorporating functions for monitoring and reporting fitness and activity data, including heart rate, pulse, temperature, perspiration, time, distance, pace, calories burned, and sleep patterns, and cumulative activity information; wearable electronics (clothing, headgear, footwear).

46