2. There are also a number of other trademarks being relevant to this case TM 1707427 Word Mark “Bathurst Winner”, used in conjunction with the merchandise.

3. The business has been using the mark extensively across many different categories and products

to include but not limited cat 25, and I have now sought protection in classes 16 and 24.

4. I have used the mark continuedly and consistently on merchandise, shop sign and flags, advertising, paraphernalia, all to do with the business in the trading of the goods. The shop or stand at events is practically known as the “King of the Mountain” that sells KOM branded merchandise at events.

5. The large shop sign that appears above the merchandise shop uses the mark that signifies that

our shop is selling the KOM range of merchandise.

People come to the KOM shop for KOM merchandise.

6. At events that the shop attends such as V8 Super car events, large car shows, local shows around the country we use the sign above our KOM Shop located on top of the mobile shop. Please see exhibit C KOM Shop. There has been a number of different signs that have used over the years. As you can see the tm has been used on all of them.

7. Apart from the KOM shop itself we use the mark extensively on merchandise which has been sold

and distributed through the following channels.

A: The KOM merchandise sold at the events themselves from the KOM shop

B: A large amount of KOM product is sold via www.musclecar.com.au.

C: We also wholesale KOM Merchandise to shops that retail our merchandise that use the mark. Merchandise

8. I have approved the used the mark extensively on merchandise, some of the items are as follows that the tm has been use don; Apparel items, Pictures, Plaques, Prints, Mats, Flags, Banners Coolers, Bar runners etc etc. Customers of the business have become aware that we are the KOM shop and the suppler of the KOM merchandise range.

9. We have been using the mark consistently now for around 8 years, we have been selling KOM

merchandise at Mt Panorama for around 8 years. As we have been selling the range for such a

long period we have become known as the King of the Mountain shop. I have heard customers say it around me in their discussion about our merchandise on several occasions at different events. Let’s go to the KOM shop they say.

10. As you can see from exhibit C, with the Trademark very large on the sign. Customer tell other

customer where they purchased items from, “at the “King of the mountain” shop”. Exhibit c shows various signs that we have used on-top of the mobile shop over a number of years. The flags that hang around the door also have the trademark printed on them, most of the merchandise inside our stand also has the trademark used on the items. It’s quite clear that our customer see us as the King of the Mountain shop, due to the number of times we have used the trademark clearly and extensively throughout the shop on goods that are supplied to customers.

Advertising and expenditure

11. The business has spent considerable money on advertising the mark and product that we use the mark on, please see exhibit D, it will show that we have spent on advertising

Exhibit D, is a statement provided from . Where the KOM trademark has been used by the business and most of the KOM merchandise product has been extensively advertised. The trademark was used in all adds.

12. Please see exhibit E, which shows some of the adds that were placed with

. The adds show where the mark has

been used on products and as a trademark depicting the product range we are selling; a large portion of the products have the mark printing on the items.

13. The adds showcase the KOM range and the use of the TM, benefits as follows:

A: The adds showcase the KOM range,

B: Adds show use of the TM C: Adds show retailers in the market that are looking for KOM merchandise that is available.

D: Adds show prospective customers what KOM merchandise is new and coming soon.

D: Adds show the websites where people can purchase the KOM merchandise from.

E: Adds show that we have a very large range of KOM product that uses the KOM trade mark consistently.

14. Please see Exhibit F, this is the retail catalogue that is sent to prospective customer, retailers and

related wholesalers. The Mark has been use consistently on product and on the catalogue page.

15. Please see exhibit G shows a small selection of the Trademark merchandise being used online with use on the product and it also shows the trademark used in the descriptions and the naming of the trademarked product.

16. The KOM products are also sold please see Exhibit H and I. These are images of the use

of the mark and the KOM range . I have only provided a selected small portion of items as it’s indicative of or KOM range produced by us. The trademark is also shown use by the retail catalogue Exhibit F.

17. I have also shown invoices and receipts from one of the , it shows the use of the mark

and the KOM range being sold, please see exhibit J.

18. We have also shown exhibit K, copy’s of some invoices, this is indicative of the KOM range sold on the business website www.musclecar.com.au.

Response from the opponent

19. We have read the response from the opponent and submit the following in response.

20. Point 2: We can see 2 drivers holding a trophy.

21. Point 4: Shows use of the mark in class 25 on apparel items please see exhibit B, this is covered by our trademark in class 25 already. We also note that the artwork says concept.

22. Point 11: As already submitted the applicant is a owner in the business www.musclecar.com.au,

the applicant has a financial % in the business and owns the merchandise that uses the trademark.

23. Point 12: The opponent has stated that the website www.muslcecar.com.au uses trademarks and insignia of the opponents, this is simply not true and an attempt to mislead the reviewing officer, we refute the comments 100%. This statement has been made without any evidence at all.

24. Point 13: We have shown a huge amount of KOM product and use the mark, the KOM

merchandise shop has the mark printed on the sign above the shop. We have given eBay shops invoices as evidence and website sales information, advertising receipts. Not to mention the KOM shop outlet at events that sells large amounts of KOM trademark. We have shown statements of advertising totalling tens of thousands of dollars that used the trademark on the ads and product on the ads.

There is no question that people / customer come to the stores and see our range as the KOM range, with such a large amount of merchandise sold by us over a long period, the public have become aware that the KOM merchandise is distributed and supply by the tm holder, the business itself is now distinguish by the mark.

Already owning the tm in class 25 and with so much evidence as shown by the evidence in class 16 and 24 there is a need to be able to protect the mark in classes 16 and 24.

25. We also note that the opponent has not provided a signed declaration for this case. Instead theevidence and signed declaration was supplied by a different person other than the opposition.

We point out that David Franklin, Legal Practitioner, of 1-1 Rigby Avenue, Carnegie, Victoria 3163, Australia, declared the evidence supplied. Merely mention that the opponent was instructed byRobert Brock, the Managing director of the opponent.

Under the Trademarks act section 53 - b1, the opponent must notify the registrar in writing thatthe right or interest is vested in him or her. As no such letter, has been sent to the register, nor acopy of a letter supplied as evidence for the reviewing officer it Leeds us to believe that no suchnotification was given to the register prior to the filing of the evidence in support.

Under sect 53, Circumstances in which opposition may proceed in the name of a person otherthan the person who filed the notice of opposition. Please see exhibit x.

Looking at the evidence is quite clear we have been using the mark constantly and continuously. Our very large range of merchandise is showing use of the mark across numerous product. We ask that the mark be excepted in the 16 and 24 and the opposition be dismissed.

I make this Declaration conscientiously believing the statements contained in this declaration to be true and correct.

Yours Sincerely Declared in Brisbane 13-13-2016

SincerelyD R Mc Lean

Screen shot from musclecar.com.au dated 11 April 2013 Images show the mark being used on product

and within the description of the product.

Following images are of Flags

10 April 2013

Coaster sets Screen shot of website dated 11-04-13

Bar Mats /Grid Mats 11 April 2013

Apparel March 2016

Flags march 2016

Bar mats March 2016

Current website as of mid 2016

Dorr mats, there is many different designs

Close up image of one of them.

Flags

There is many on our website.

Close up of a Flag

Bucket hats

Close up of a Bucket hat

Printed Plaques

Close up of the Printed Plaques

Tin Signs

Clos up of the sign

Gazebo flags Banners

Commonwealth Consolidated Acts

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TRADE MARKS ACT 1995 - SECT 53

Circumstances in which opposition may proceed in name of a person other than the person who filed the notice

If:

(a) after a person has filed a notice of opposition, the right or interest on which the person relied to file the notice of opposition becomesvested in another person; and

(b) the other person:

(i) notifies the Registrar in writing that the right or interest is vested in him or her; and

(ii) does not withdraw the opposition;

the opposition is to proceed as if the notice of opposition had been filed in that other person's name.

Note: For file see section 6.

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