TRADE MARKS ORDINANCE (Cap. 559) OPPOSITION TO TRADE MARK APPLICATION NO. 300130157 MARK:

CLASSES:

9, 14, 16, 18, 21, 24, 25, 28, 34, 35, 37, 41, 42

APPLICANT: CHINA PGA TOUR LIMITED

OPPONENT: PGA TOUR, INC. and THE PROFESSIONAL GOLFERS’ ASSOCIATION OF AMERICA

STATEMENT OF REASONS FOR DECISION

Background

1. On 19 December 2003, China PGA Tour Limited (the “applicant”) filed an

application (the “subject application”) under the Trade Marks Ordinance, Cap. 559

(the “Ordinance”) for registration of the following mark:-

(“the subject mark”).

Registration is sought in respect of those goods and services set out in Appendix I

hereto, in Classes 9, 14, 16, 18, 21, 24, 25, 28, 34, 35, 37, 41 and 42.

2. Particulars of the subject application were published on 28 January 2005.

On 27 June 2005, PGA TOUR, Inc. and The Professional Golfers’ Association of

America, which hereinafter shall be referred to together as the opponents and

individually as the first opponent and second opponent respectively, filed a notice of

opposition with the grounds of opposition (“Grounds of Opposition”) attached.

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3. The opposition hearing took place before me on October 12 and 13, 2011.

Ms. Winnie Tam S.C. and Mr. Gary Lam of Counsel, instructed by Tanner De Witt,

Solicitors, represented the applicant. Mr. Colin Shipp of Counsel, instructed by

Wilkinson & Grist, Solicitors, represented the opponents.

Grounds of Opposition

4. In the Grounds of Opposition, the opponents oppose registration of the

subject mark under sections 3, 11(1)(a), 11(1)(b), 11(4)(b), 11(5)(a), 11(5)(b), 12(3),

12(4) and 12(5)(a) of the Ordinance. Annex A to Annex D of the Grounds of

Opposition list out the trade marks relied upon by the opponents in launching the

oppositions against the subject application.

Counter Statement

5. The applicant filed a Counter Statement on 23 November 2005, denying all

the grounds of opposition.

The opponent’s evidence

6. The opponent’s evidence comprises a statutory declaration of Karen M.

Stein dated 12 September 2006 (“Stein’s statutory declaration”) and a statutory

declaration of Christopher M. Hanes dated 25 June 2008 (“Hanes’ statutory

declaration”).

7. Ms. Stein is the Vice President and Assistant General Counsel of PGA Tour,

Inc. (i.e., the first opponent) which she had been associated with since 1997. She

made Stein’s statutory declaration from her own personal knowledge and from the

first opponent’s documents and records to which she had access. She has been duly

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authorized by the first opponent as well as the second opponent to make the statutory

declaration in these proceedings.

8. According to Ms. Stein, The Professional Golfers’ Association of America

(i.e., the second opponent), a corporation organized and existing under the laws of

Florida having its registered address at 100 Avenue of the Champions, Palm Beach

Gardens, Florida 33410, United States of America, was founded in 1916 and is the

largest working sports organization in the world with more than 28,000 members.

PGA Tour, Inc. was initially affiliated with the second opponent until 1968 when the

tournament players, a small subset of the total The Professional Golfers’ Association

of America membership, broke away to form the Tournament Players Division, which

was later renamed the PGA Tour, Inc. in 1975; since then the two organizations,

which have become separate entities and constitute the first opponent and the second

opponent in the present proceedings, have worked closely together, and most

professional golfers maintain dual membership in the two organizations. The second

opponent is now primarily a representative body for club and teaching professionals,

as the elite tournaments are now run by the first opponent. Exhibit “KMS-1” to

Stein’s statutory declaration contains printouts from the first opponent’s official

website and the second opponent’s official website which detail and explain the

relationship between the first opponent and the second opponent.

9. Whilst legally speaking, the first opponent and the second opponent are

separate legal entities and holding different rights and interests – as pointed out by

their own assertion, the elite tournaments are now run by the first opponent – the

opponents have not, in their pleadings and evidence, made much distinction between

themselves as regards the respective trade mark applications and registrations they

hold across the world, and the marks they actually use to identify themselves. Given

their very close relationship, their confirmation that they are jointly opposing the

subject application, and the fact that the grounds of opposition are common to them1,

I would in the following discussions, for convenience, similarly adopt the same

approach as the opponents did and not to make much a difference between the first

opponent and the second opponent, but would refer to them collectively, unless the

1 The confirmation as contained in paragraph 4 of Stein’s statutory declaration.

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context requires otherwise. My understanding is that that would not involve any

matters of significance that should affect the outcomes of these proceedings.

10. It is claimed that the opponents “have been using trade marks incorporating

"PGA" and/or "PGA" with "TOUR" and/or with "CHAMPIONSHIP" and/or

"TOURNAMENT PLAYERS CLUB" and/or "TPC" and/or featuring the words "Tour

Championship" and/or the words "Players Championship" and/or incorporating a

device of a golfer and/or featuring a device of a trophy and/or featuring the words

"The President’s Cup" for, inter alia, entertainment services in the nature of

conducting golf tournaments and the production of televised golf events around the

world and have obtained registrations for their marks worldwide including Hong

Kong”. Exhibit “KMS-2” to Stein’s statutory declaration contains copies of

registration certificates (including a publication notice) of some of the trade marks

referred to in Annex A of the Grounds of Opposition and copies of printout from the

online databases of various worldwide websites detailing some trade mark

registrations or applications for registration held by the opponents in Hong Kong, the

U.S., the U.K., the European Community, Australia, New Zealand, Singapore and

Canada; Exhibit “KMS-3” contains copies of printout from the search system of the

Hong Kong Trade Marks Registry showing records of 15 active trade mark

registrations in classes 8, 25, 28 and 41 in the name of the opponents as identified in

the table set out at paragraph 8 of the Grounds of Opposition.

11. Ms. Stein alleges that given the enormous popularity of the opponents’

services, the use of the opponents’ marks have extended to goods falling in classes 6,

9, 14, 16, 18, 21, 24, 25, 27 and 28. In the United States, the opponents first began

to use their marks on goods falling in class 9 in 1988, in class 14 in 1996, in class 16

in 1989, in class 18 in 1982, in class 24 in 1996, in class 25 in 1980 and in class 28 in

1982. It is claimed that the opponents have throughout the years extensively and

continuously advertised and promoted its products and services under their trade

marks through advertisements on their websites, televisions, billboards, magazines

and other publications which have substantial circulation worldwide including Hong

Kong. It is alleged that the total value of television promotional spots – aired on the

following US networks: ABC, CBS, ESPN, NBC, The Golf Channel, TNT and USA –

run annually throughout the years for the first opponent and various business lines

equals approximately US Dollars 60 million, and the value of the television

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promotional spots promoting the World Golf Championship events total more than US

Dollars 11 million.

12. Figures of the total worldwide advertising and promotional expenditure of

the first opponent are given in Ms. Stein’s statutory declaration, approximated to US

Dollars 34 million for the years 1998 to 2003 and 29 million for the years 2001 to

2005. Annual total revenue from the provision of the opponents’ services and sales

of products bearing the opponents’ trade marks, starting from US Dollars 303 million

in 1999, followed a generally upward trend to reach US Dollars 522 million in 2005.

13. Ms. Stein alleges that through the substantial sales, extensive and continuous

advertising and promotion of services and products bearing the opponents’ trade

marks, the high standard of quality and special care with regards to the goods and

services marketed under the opponents’ marks, and the numerous registrations

referred to in Annex A of the Grounds of Opposition, the opponents’ trade marks have

acquired substantial reputation both on a worldwide basis and in Hong Kong and they

have become distinctive of and identified with the opponents and no others.

14. The rest of Stein’s statutory declaration contains comments and response to

the Counter Statement filed by the applicant. I do not propose to summarize them

but would refer to the relevant parts as and when appropriate.

15. The other exhibits attached to Stein’s statutory declaration are listed and

described below:-

Exhibit Description

KMS-4 Copies of Hong Kong broadcast information and schedules for

2000 through to 2005

KMS-5 Copies of printouts from the first opponent’s website

http://www.pgatour.com/ and the second opponent’s website

http://www.pga.com/home/ as well as http://www.tpc.com/ all

accessible worldwide

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KMS-6 Copies of the opponents’ International License Report as of

17th March 2006 as well as copies of printouts from the first

opponent’s website

http://www.pgatour.com/info/company/licensees listing the

first opponent’s official retail and consumer marketing

licensees and international licensees

KMS-7(a) Copies of promotional materials for 2002, 2003, 2004, 2005

and 2006 Official PGA TOUR Media Guide

KMS-7(b) Copies of promotional materials for the Official Annual 2003

and 2005 PGA TOUR

KMS-7(c) Copies of promotional materials for the Official Annual 2005

Champions Tour

KMS-7(d) Copies of promotional materials for TOUR 2004 UP CLOSE

KMS-7(e) Copies of promotional materials for TOUR 2005 UP CLOSE

KMS-7(f) Copies of promotional materials for PARTNERS Official

Magazine Nov/Dec 2004

KMS-7(g) Copies of promotional materials for PARTNERS official

Magazine Jan/Feb 2005

KMS-7(h) Copies of promotional materials for PARTNERS Official

Magazine Sept/Oct 2005

KMS-7(i) Copies of promotional materials for Sample Tournament

Program (Sony Open 2005 and Shell Houston Open 2006)

KMS-7(j) Copies of promotional materials for Forbes 2005 Golf

Programs

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KMS-7(k) Copies of promotional materials for Forbes 2006 Golf

Programs

KMS-8 Copies of relevant pages of the annual reports of PGA Tour,

Inc. covering the years 2000 to 2005

KMS-9 Printouts from http://www.pga.info/ the home page of the U.K.

Professional Golfers’ Association

KMS-10 Printouts from Wikipedia, the free encyclopedia, showing that

the second opponent runs the PGA Championship and the

Senior PGA Championship and co-organizes the Ryder Cup

with the PGA European Tour

KMS-11 Printouts from other encyclopedias that reference the

opponents and the operation of their tournaments

KMS-12 Printouts of the particulars of Hong Kong registration nos.

2000B16383 and 2003B08094 for “ASIAN PGA TOUR” in

class 25 and 41

KMS-13 Printout from

http://www.worldgolfchampionships.com/news/asian_pga.html

and http://www.asianpga.com/service.php?id=1, the latter

being the home page of the Asian Professional Golfers’

Association

KMS-14 Copies from the opponents’ 2005 Official Media Guide and the

online printout from

http://www.worldgolfchampionships.com/info/overview and

http://www.worldgolfchampionships.com/info/international

which list the members of the International Federation of PGA

Tours and provide details of the organizations

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KMS-15 Printout of the tournaments/tour schedules from the websites

of various members of the International Federation of PGA

Tours showing use of “PGA” with “TOUR” or

“Championship”

16. Hanes’ statutory declaration was filed as evidence in reply to the applicant’s

evidence which, as to be discussed below, consists of statutory declarations made by

Lau Siu Sang. As Hanes’ statutory declaration contains largely comments on the

applicant’s evidence and Mr. Hanes’ own observation and submissions, I do not

propose to summarize them here but would refer to the relevant parts as and when

appropriate.

The applicant’s evidence

17. The applicant’s evidence originally comprises a statutory declaration of Lau

Siu Sang dated 22 September 2007 (“Lau’s first statutory declaration”). It’s not

stated in Lau’s first statutory declaration whether Mr. Lau holds any position in or has

any connection with the applicant, it merely states that Mr. Lau manages “Golf

Express”, a weekly magazine published by and distributed weekly alongside Sing Pao

Daily. Mr. Lau states that the matters referred to in his first statutory declaration are

within his personal knowledge based on his experience and participation in the local

golfing circles as an active golfer, publisher of a golfing magazine, golf columnist and

contributing writer for major local and international golf magazines.

18. About one and a half month before the hearing, the applicant through its

agent sought leave to file a second statutory declaration of Lau Siu Sang dated

23 August 2011 (“Lau’s second statutory declaration”). The opponent initially

objected to the granting of the leave, but after further negotiation between the parties,

it was agreed that if a condition is made that the applicant would only rely on

paragraphs 1 to 4 of Lau’s second statutory declaration, the opponent would not object

to the granting of such a leave. The Registrar have accordingly by his letter dated

15 September 2011 made a provisional order granting such a leave, and the opponent

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has not requested a hearing on the matter. Paragraphs 1 to 4 of Lau’s second

statutory declaration deal with the matter I refer to in the preceding paragraph, namely,

whether Lau Siu Sang had been authorized by the applicant to make the first statutory

declaration. By paragraph 4 of the second statutory declaration, Mr. Lau makes it

clear that the first statutory declaration was duly authorized by the applicant and was

made on behalf of the applicant in connection with the present proceedings.

19. In gist, Lau’s first statutory declaration gives nothing more than an overview

account of the development and establishment of the sport of golf in Hong Kong,

portraying it as a sport that is meant for the financially well off, educated

professionals, business executives, entrepreneurs, etc., and beyond the financial

means of average consumers. I do not propose to summarize them here but would

refer to the relevant parts as and when appropriate.

20. The exhibits attached to Lau’s first statutory declaration are listed and

described as follows:-

Exhibit Description

LSS-1 Copies of printout from The Jockey Club Kau Sai Chau

Public Golf Course website showing fee schedule for the

North and South Course and booking and handicap

requirements

LSS-2 Copies of printout from The Hong Kong Golf Club website

about private courses that are open to the Hong Kong public

LSS-3 Copy printout from the official UBS Hong Kong Open

website being the event fact sheet for the year’s upcoming

tournament (2007)

LSS-4 Copies of printout from the Ladies Asian Golf Tour website

giving the tournament information

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LSS-5 The schedules of The Golf Channel, Golf Tour Channel,

Star Sports and PGA Tour channels

LSS-6 Copies of printout from several Hong Kong golf club

websites

Decision

21. Although the opponents had pleaded in the Grounds of Opposition a number

of grounds which it would rely on to launch the present proceedings, namely, those

under sections 3, 11(1)(a), 11(1)(b), 11(4)(b), 11(5)(a), 11(5)(b), 12(3), 12(4) and

12(5)(a) of the Ordinance, at the hearing, Mr. Colin Shipp, counsel for the opponents,

made it clear that the opponents would only pursue grounds of opposition based on

sections 11(5)(b), 12(3) and 12(5)(a) of the Ordinance. I would therefore treat the

opposition based on the other pleaded grounds as no longer being pursued by the

opponents.

22. Mr. Shipp said in his skeleton submission that the ground of opposition

based on section 11(5)(b) is the primary ground relied on by the opponent, and this is

the ground he first addressed me on, I would therefore deal with this ground first.

23. I just record that for any of the grounds of opposition discussed in this

decision, it’s not in dispute that the relevant date is the date the subject application

was filed, viz., 19 December 2003 (“the relevant date”).

Section 11(5)(b) of the Ordinance

24. Section 11(5)(b) of the Ordinance provides that a trade mark shall not be

registered if the application for registration of the trade mark is made in bad faith.

The term “bad faith” is not defined in the Ordinance.

25. Although in the Grounds of Opposition, section 11(5)(b) is pleaded as one of

the legal bases for launching the present opposition, no specific reasons or single fact

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had been distinguished or separated from the general accusation of confusing

similarity between the subject mark and the opponents’ marks to justify why the

application for registration of the subject mark should be construed to have been made

in bad faith. In other words, there is no particularization of the bad faith claim in the

pleadings, and it’s not disputed that there is no specific evidence of bad faith

contained in Stein’s statutory declaration which was filed by the opponent as evidence

in support of the opposition. The only place where purportedly evidence of bad faith

may be found is in Hanes’ statutory declaration. But Hanes’ statutory declaration, as

pointed out by Ms. Winnie Tam, counsel for the applicant, was filed within the ambit

of Rule 20 and should only be taken strictly as evidence in reply to the applicant’s

evidence. Given that the opponent has not in the proper place, namely, under its

Rule 18 evidence, produced anything to support a claim of bad faith, there is legally

speaking no need to deal with a bad faith claim in the applicant’s evidence. Ms. Tam

is therefore right in submitting that those parts in Hanes’ statutory declaration which

purport to deal with bad faith are outside the scope of being evidence in reply, and as

such should not have been filed in the first place, and even though they have already

been filed, they should not be given any evidential weight; this is more so as the

applicant would be deprived of any opportunity to make a reply to what is said in

Hanes’ statutory declaration.

26. Mr. Shipp tried to persuade me to look at this issue in a different way.

What I perceive to be Mr. Shipp’s argument is this: the applicant has put in a bare

denial of bad faith in the Counter-Statement, but at paragraph 14(f) of the

Counter-Statement, it was alleged that the subject mark was devised to exclusively

identify the geographically separate nature of professional golf and golf tournaments

conducted in China and the culturally distinct nature of professional golfing services

provided by a Chinese golfing association; the fact that the applicant had not filed any

evidence to verify or substantiate the aforesaid denial and assertive statement, coupled

with the information in Hanes’ statutory declaration which is alleged to be capable of

showing that the business of the applicant company was conducted in a shadowy

manner without legitimate reason, means that a positive case of bad faith (in the

words of Mr. Shipp) could be inferred. The following cases are relied upon by Mr.

Shipp to support his argument: Kundry SA’s Application [1998] ETMR 178;

TRAVELPRO Trade Mark [1997] RPC 864.

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27. It has long been established that an allegation of bad faith should not be

lightly made unless it can be fully and properly pleaded, and should not be upheld

unless it is distinctively proved and this will rarely be possible by a process of

inference (ROYAL ENFIELD Trade Marks [2002] R.P.C. 24 at para. 31; also see

Cipriani SRL v Cipriani (Grosvenor Street) Ltd [2009] R.P.C. 9 at para. 177). What

Mr. Shipp urged me to do in the present case, as discussed above, is quite the opposite.

In essence, Mr. Shipp invited me to draw inference of bad faith from the applicant’s

alleged lack of pleadings and evidence to deny bad faith. With respect, this seems to

me to be putting the cart before the horse, considering the fact that the opponent has

done nothing in its own pleadings and evidence to even identify a valid issue of bad

faith. I am unaware that there is such a practice and if there were to be, it would be

wrong. In my view, the two cited cases, if anything, just confirm that bad faith is a

serious allegation that must be proved – the bad faith claims there were particularized

to an extent not in the least matched in the present case, and unlike what the present

applicant has done, the parties found to have fallen foul of bad faith in the two cited

cases had not spent any effort in taking part in the proceedings, had not even cared to

file a counter statement to deny the claims.

28. As regards Hanes’ statutory declaration, if Mr. Shipp’s position that the

applicant has not provided any evidence to substantiate its denial and the assertive

statement at paragraph 14(f) of the Counter-Statement is right, the logical conclusion

should be that there would not warrant any evidence in reply. Insofar as any parts of

Hanes’ statutory declaration were purported to be used as evidence in support of bad

faith, I agree with Ms. Tam that they are not evidence in reply and should not be given

any evidential weight.

29. Summing up from the above, I do not see that a case of bad faith has been

made out. The ground of opposition under section 11(5)(b) must necessarily fail.

Section 12(5)(a) of the Ordinance

30. Section 12(5)(a) concerns the protection of “an unregistered trade mark or

other sign used in the course of trade or business” by virtue of the law of passing off

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vis-à-vis the mark in question.

31. A helpful summary of the elements of an action for passing off can be found

in Halsbury’s Laws of Hong Kong Vol. 15(2) at paragraph 225.001. The guidance

takes account of speeches in the House of Lords in Reckitt & Colman Products Ltd v

Borden Inc [1990] R.P.C. 3412 and Erven Warnink BV v J Townend & Sons (Hull) Ltd

[1979] A.C. 731, and is as follows :

“The House of Lords has restated the necessary elements which a plaintiff has to establish in an action for passing off:

(1) the plaintiff’s goods or services have acquired a goodwill or reputation in the market and are known by some distinguishing feature;

(2) there is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the plaintiff; and

(3) the plaintiff has suffered or is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation.

The restatement of the elements of passing off in the form of this classical trinity has been preferred as providing greater assistance in analysis and decision than the formulation of the elements of the action previously expressed by the House of Lords. However, like the previous statement of the House of Lords, this latest statement should not be treated as akin to a statutory definition or as if the words used by the House of Lords constitute an exhaustive, literal definition of ‘passing off’, and in particular should not be used to exclude from the ambit of the tort recognized forms of the action for passing off which were not under consideration on the facts before the House of Lords.”

32. The question I have to ask is whether normal and fair use of the designation

“China Professional Golfers' Association Tour Tournament Players Club” (i.e., the

subject mark) in Hong Kong for the purpose of distinguishing the goods and services

of interest to the applicant from those of other undertakings was liable to be prevented

at the date of application for registration by an action for passing off protecting the

registered or unregistered marks of the opponents’ (see the decision of Geoffrey 2 This has also applied in local cases, e.g. Ping An Securities Ltd v 中國平安保險 (集團) 股份有限公司, FACV 26/2008 (12 May 2009).

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Hobbs QC, sitting as the Appointed Person, in the case of WILD CHILD Trade Mark

[1998] R.P.C. 455). To answer that question, I must first ascertain what mark or

marks the opponents rely upon, or certain distinguishing feature of those marks, have

acquired a goodwill or reputation in the market.

33. I have summed up the opponent’s evidence at paragraphs 6 to 15 above. It

is claimed that the opponents have been using trade marks incorporating wide

combinations of any of the following elements: "PGA", "TOUR",

"CHAMPIONSHIP", "TOURNAMENT PLAYERS CLUB", "TPC", "Tour

Championship", "Players Championship", a device of a golfer, a device of a trophy,

and "The President’s Cup" for, inter alia, entertainment services in the nature of

conducting golf tournaments and the production of televised golf events around the

world; and those trade marks have obtained registrations in various classes throughout

the world including Hong Kong. Examination of the materials in the various

exhibits attached to Stein’s statutory declaration, in particular the various promotional

materials at exhibit KMS-7, reveals that whilst the opponents have in many places

across the world registered a great variety of trade marks that are made up of one or

more of the aforesaid elements, the opponents had mainly used the mere words “PGA

TOUR” and a composite mark (the “PGA TOUR Logo”) which comprises the words

PGA and TOUR and a device of a golfer figure to identify themselves as the golfers’

leading organization and organizer of the main men's professional golf tours in the

United States as well as the rightful holders of all things in connection therewith,

including all sorts of title sponsorship, official marketing partnership, licensing, retail

licensing and production of entertainment contents. The extract below from a

promotional material exhibited at KMS-7 shows that the PGA TOUR Logo was

placed alongside the mere word mark PGA TOUR:-

34. The mere word mark PGA TOUR and the PGA TOUR Logo are collectively

hereinafter referred to as the “PGA TOUR marks”. As regards the popularity of

these marks, judging from the evidence filed, I have no doubt that at least in the

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United States, they enjoy substantial goodwill and reputation in relation to their use in

conducting golf tournaments in the US and in the production, sale and distribution of

televised golf events for broadcasting in various regions across the world. Stein’s

statutory declaration alleges that the “PGA TOUR” mark was first used in commerce

as early as January 1980, and the first telecast of a “PGA TOUR” event was aired in

Hong Kong in November 1998. Exhibit KMS-4 contains Hong Kong broadcast

information and schedules, the earliest one of which is from the year 2000.

35. Stein’s statutory declaration further alleges that “[g]iven the enormous

popularity of the opponents’ services, the use of the opponents’ marks have extended

to goods falling in International Class 6, 9, 14, 16, 18, 21, 24, 25, 27 and 28.”3

Copies of the opponents’ International License Report, exhibited at KMS-6, which

lists out the first opponent’s official retail and consumer marketing licensees and

international licensees, suggest that the opponents’ marks had been used, through

licensing to third parties, in the marketing of or on golf products such as golf clothing,

golf clubs, and other outdoor apparel. However, it appears that none of those listed

licensees were based in Hong Kong.

36. As mentioned in paragraphs 10 to 13 above, the total worldwide advertising

and promotional expenditure, as well as the revenue generated, of the opponents’

products and services under the opponents’ marks, are very substantial. However, all

these have not been broken down specifically into different territories, nor into the

different kinds of products and services of the opponents’. On the evidence, I could

only assume that the majority of them were spent in the United States. For places

outside the US, as it cannot be ascertained what goods and services of the opponents

actually featured in those places other than the showing of televised golf events, it

could only be anyone's guess how popular or known the opponents’ signs/marks are.

37. Insofar as Hong Kong is concerned, the picture is not a bit clearer. First,

there is no assertion suggesting that there were any merchandised goods of the

opponents being offered or sold to the people in Hong Kong from whatever sources.

Secondly, as pointed out above, none of the first opponent’s official retail and

consumer marketing licensees and international licensees (as exhibited at KMS-6)

3 Paragraph 10 of Stein’s statutory declaration.

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were based or located in Hong Kong. Thirdly, although some advertisements in the

promotional materials for the Official Annual (in exhibit KMS-7) have the PGA

TOUR Logo appeared to signify that the goods or services concerned were officially

licensed or approved by or in connection with the opponents’ PGA TOUR events,

apparently the average consumers would have no difficulty saying that the trade

marks that appear alongside the PGA TOUR Logo, but not the PGA TOUR Logo

itself, are the trade marks for the goods and services concerned. The PGA TOUR

Logo is expressly used for the aforesaid signification effect and just so far. In any

event, it has not been suggested that these advertisements had been circulated to or

targeted at Hong Kong people.

38. Given the evidence as discussed, the only sure point of contact between the

opponents’ signs/marks and the local people was in the televised golf events which

were shown on television networks that were commercially available to local people

through subscriptions. There is no evidence showing concretely how and what

signs/marks of the opponents’ were actually used in the televised programs, however,

given that the copies of Hong Kong broadcast information and schedules for 2000

through to 2005 exhibited in KMS-4 all feature “PGA TOUR”, coupled with my

above observation that the opponents had mainly used the PGA TOUR marks to

identify themselves, I can reasonably infer that the PGA TOUR marks are the marks

that featured in those televised programs.

39. Summing up from the above, there is no evidence to establish a goodwill or

reputation attached to any merchandised goods in the mind of the purchasing public in

Hong Kong by association with the PGA TOUR marks under which the opponents

may supply or offer to the public, such that the PGA TOUR marks are recognized by

the public as distinctive specifically of the opponents’ goods.

40. As regards the use of the PGA TOUR marks in the televised golf events, I

accept that that could generate reputation among viewers of the televised events. As

shown by the materials exhibited in KMS-4, television networks such as CNBC Asia,

ESPN Star Sports SE Asia, NOW BBTV, had, before the relevant date, programs

featuring PGA Tour events shown to viewers across the world which included Hong

Kong as one of the so called “exclusive territories”, with a viewing population in

Hong Kong, measured in terms of “station reach”, amounting to something in the

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region of 420,000 to 450,000 for the years 2000 to 2002 in the case of ESPN Star

Sports SE Asia. But the aforesaid, as pointed out by Ms. Tam, is not and cannot be

an indication of the number of people (or households) who had actually viewed the

programs. Even assuming that, in some way, local reputation had been generated in

relation to the PGA TOUR marks because of their presence in the televised golf

events, it is difficult to see how that reputation could be extended further beyond the

limited circle of local subscribers of television networks such as CNBC Asia, ESPN

Star Sports over the years.

41. On the evidence before me, I am only prepared to accept that at the date of

the application for registration of the subject mark, the opponents might have acquired

a certain reputation and goodwill in connection with the showing of televised golf

events to viewers in Hong Kong.

42. Given such limited reputation and goodwill, I should, nonetheless, go on to

consider whether use of the subject mark would amount to a misrepresentation, so as

to give rise to the likelihood of confusion among members of the public.

43. Guidance on this is given in Halsbury’s Laws of Hong Kong Vol 15(2) at

paragraph 225.020:

“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.

While it is helpful to think of these two factual elements as two successive hurdles which the plaintiff must surmount, consideration of these two aspects cannot be completely separated from each other, as whether deception or confusion is likely is ultimately a single question of fact.

In arriving at the conclusion of fact as to whether deception or confusion is likely,

17

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.

In assessing whether confusion or deception is likely, the court attaches importance to the question whether the defendant can be shown to have acted with a fraudulent intent, although a fraudulent intent is not a necessary part of the cause of action.”

44. Question may be asked here who the relevant consumer is for the purpose of

passing off. As the expert or professional golfer, such as representative of

association of professional golfers, is going to know his or her own trade, I consider

that the consumer concerned, in relation to whether there would be passing off, should

be taken to be the average, recreational golfer who goes to a sports shop to buy golf

equipment and has to choose between golf equipment among various brand names,

and who likes to watch golf related shows available on television in Hong Kong. If

the passing off claim cannot succeed in relation to this consumer, I cannot see how it

can succeed in relation to the expert or professional consumer. After all, confusion

must be ascertained from the viewpoint of the average consumer:

“The perception of the marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global assessment of the likelihood of confusion (see SABEL, para.23, Lloyd Schuhfabrik Meyer, para.25, and the order in Case C-3/03 P Matratzen Concord v OHIM, para.29).” (L'Oreal SA v OHIM, Case C-235-05 at [41])

45. The subject mark here is a mere word mark consisting of the following

words in this order: China Professional Golfers' Association Tour Tournament Players

Club. “Tour” is the only common element shared between the subject mark and the

PGA TOUR marks, the latter I have found to have a certain reputation or goodwill

18

established by televised golf events shown to viewers in Hong Kong. As the above

quoted guidance shows, passing off is not just about similarities between signs and

goods, it is about whether the public would be deceived, so what has to be taken into

account, inter alia, is the knowledge of the public and the perception of the public as

regards “PGA Tour”, which is the distinctive and dominant element of the PGA

TOUR marks.

46. In this respect, the applicant has filed its evidence, which comprises in the

main Lau’s first statutory declaration. Lau’s first statutory declaration, as I have

mentioned under paragraphs 17 to 20 above, tends to show that golf has always been a

sport that is meant for the financially well off, educated professionals, business

executives, entrepreneurs, etc., and beyond the financial means of average consumers.

Mr. Lau points out that there are numerous golf related shows being shown on

television in Hong Kong, with 3 “golf” channels being made available to Hong Kong

viewers, namely, (1) Golf Tour Channel which shows LPGA Tour and European Tour

tournaments and other golfing events, (2) Golf Channel showing the Omega China

Tour tournaments and other golf instructional programs, and (3) PGA Tours which

shows USPGA related tournaments and PGA Tour produced programs. It is also said

that the Star Sports Channel showed televised professional tournaments from the

Asian Tour, European Tour, the China Tour, LPGA Tour, Ladies Asian Golf Tour and

PGA Tour, as did the Golf Tour Channel.4

47. Mr. Lau goes on to give his view that due to the many golf related programs

available on the dedicated golf and other sports channels, Hong Kong golfers are

exposed to golf tournaments from various professional golf tours featuring

professional players from various regional PGAs5, and believes that these programs

allow Hong Kong golfers to know that there are many PGAs and professional tours in

different regions of the golfing world and that different PGAs sanction different

tournaments. He lists out some teaching professionals in Hong Kong who are

members of various regional PGAs, including Hong Kong PGA, British PGA,

Australia PGA, etc., and exhibits as “LSS-6” relevant pages from several Hong Kong

4 Paragraphs 17, 18, 19 and 20 of Lau’s first statutory declaration, and exhibit LSS-5 which contains the schedules of The Golf Channel, Golf Tour Channel, Star Sports and PGA Tour channels. 5 Mr. Lau in his statutory declarations did not specify what “PGA” and “PGAs” stand for, or what he understands they stand for. In the context it’s reasonable to assume that he’s using them to refer to professional golfers’ association(s).

19

golf club websites showing teaching professionals who are members of various

regional PGAs and players or former players of various regional professional tours,

and the membership list of the Hong Kong PGA from its official website. Mr. Lau

concludes that based on his personal knowledge and experience, he seriously doubts

that a typical Hong Kong golfer will assume “PGA” or “TOUR” to be connected with

any specific professional golfing association or professional tour.

48. Hanes’ statutory declaration was filed as evidence in reply to Lau’s first

statutory declaration. Hanes’ response to the above comments or assertions of

Mr. Lau was only that Mr. Lau has not provided any evidence to show that Hong

Kong golfers (whether professional or amateur or viewers/attendees of golf tours and

tournaments or viewers of televised golf events) would know all these, hence the

comments or assertions of Mr. Lau are purely speculative and without merit.6

49. I do not think Mr. Lau’s comments or assertions are purely speculative and

without merit. Basing on the alleged background information in relation to the sport

of golf, which I see no reason to doubt and would accept, Mr. Lau is entitled to give

his views as discussed. It is true that there was no direct evidence of public

perception, for example by way of survey evidence, but that is not uncommon in

passing off cases, and in any event a number of authorities make it clear that great

care needs to be taken with survey evidence obtained from members of the public in

passing off actions: see e.g. Scott Ltd v NicePak Products Ltd [1989] F.S.R. 100; and

per Geoffrey Hobbs Q.C. (sitting as a deputy judge of the Chancery Division) in

Whirlpool Corp v Kenwood Ltd [2009] R.P.C. 2 at [35]. In a case like the present

one, where the sport involved is of a kind which is not normally meant for the general

public but for the financially well off, educated professionals, business executives,

entrepreneurs, evidence of persons accustomed to and knowledgeable in that sport and

all the establishments and institutions in connection therewith is essential for

assessment as to the likelihood of deception or confusion. A presiding hearing

officer like me who is totally unfamiliar with that sport must nonetheless use common

sense in assessing the credibility and probative value of that evidence.

6 Paragraph 14(c) and (d) of Hanes’ statutory declaration.

20

50. There is no doubt, in my mind, that PGA is used as an acronym for any

professional golfers’ associations across the world, and does not necessarily refer only

to that association of the opponents in the United States of America. The opponents

use it both as a generic term and as an identifier of themselves (whether alone or in

conjunction with other words and device), as do the various regional PGAs mentioned

by Mr. Lau in his statutory declaration, though the latter tend to further identify

themselves, in addition, by reference to their own nationalities: hence there are Hong

Kong PGA, British PGA, Australia PGA, etc.

51. The opponents do admit that they are not the first professional golfers’

association in the world, and point out that the Professional Golfers’ Association

Limited of the U.K., founded in 1901, is probably the oldest organization for

professional golfers. They also accept, in Hanes’ statutory declaration, that they do

not have a monopoly over golf tours and tournaments or televised golf services in

Hong Kong.7 But they allege that they are probably the largest professional golfers’

association in the world, and their objection to the subject application is use by the

applicant of marks which have the combination “PGA” and “TOUR”. Be that as it

may, the more important point here is that, as Mr. Lau points out in his statutory

declaration, the relevant public in Hong Kong have long been educated in

distinguishing between various PGAs, often by the national reference in the name or

mark that incorporated “PGA” and/or “TOUR”.

52. Looking at all the evidence in the round, I think it cannot be seriously

contested that the sport of golf in Hong Kong is an expensive sport meant for the

financially well off, educated professionals, business executives, entrepreneurs, etc.,

that there are golf related programs available on television channels featuring various

golf tours and tournaments (not only the opponents’), and Hong Kong golfers are

exposed to golf tournaments from various professional golf tours featuring

professional players from various regional PGAs, and there are many teaching

professionals for golf in Hong Kong who are members of various regional PGAs.

7 Hanes’ statutory declaration, paragraph 14(b), as responses to allegations contained in paragraphs 12, 13 and 15 of Lau’s first statutory declaration which discuss the professionally sanctioned golf tournaments held in and televised from Hong Kong.

21

53. I should say here that as far as the PGA TOUR marks are concerned, I need

only to concern myself with the word mark “PGA TOUR” here and consider it in

relation to “China Professional Golfers' Association Tour Tournament Players Club”

which is the subject mark, for if “PGA TOUR” cannot succeed against the subject

mark, I cannot see how the PGA TOUR Logo can.

54. It does not make any difference whether it’s in the subject mark or in the

opponents’ word mark “PGA TOUR”, the word TOUR would be perceived to simply

refer to a series of professional tournaments or competitions8. It follows that, even

though PGA and TOUR, if used together, might have generated, as I have found

above, certain reputation and goodwill for the opponents in connection with the

showing of televised golf events to viewers in Hong Kong, even putting aside the

detailed comparison of the marks at issue as I would carry out below at paragraphs 71

to 82, I think it is totally fanciful to postulate that the public, if encounters the subject

mark, namely, China Professional Golfers' Association Tour Tournament Players Club

in relation to golf products as well as golfing events, they would associate it with the

opponents, or believe that the goods are in some way connected with the opponents.

Consequently, there would not be deception or confusion and so the claim in relation

to passing-off must fail.

55. I hold that the ground of opposition under section 12(5)(a) fails.

Section 12(3) of the Ordinance

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

“(3) 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

8 For example, the online Cambridge Advanced Learner's Dictionary has “tour” defined as “a planned visit to several places in a country or area made for a special purpose, such as by a politician, sports team or group of performers”; the online Collins English Dictionary has it defined as “an overseas trip made by a cricket or rugby team, etc, to play in several places”.

22

(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.”

57. Under 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.

58. Section 12(3) of the Ordinance is similar in effect to section 5(2) of the U.K.

Trade Marks Act 1994, which implements Article 4(1)(b) of the First Council

Directive 89/104 of 21 December 1998 of the Council of the European Communities

(“the Council Directive”). In interpreting Article 4(1)(b) of the Council Directive,

the European Court of Justice (“ECJ”) has formulated the “global appreciation” test,

the principles of which can be found in the ECJ decisions in Sabel BV v Puma AG

[1998] R.P.C. 199, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc. [1999]

R.P.C. 117, Lloyd Schuhfabrik Meyer & Co GmbH v Klijsen Handel B.V. [2000] F.S.R.

77 and Marca Mode CV v Adidas AG [2000] E.T.M.R. 723.

59. In essence, the test under section 12(3) is whether there are similarities in

marks and goods which would combine to create a likelihood of confusion. The

likelihood of confusion must be appreciated globally and I need to address the degree

of visual, aural and conceptual similarity between the marks, evaluating the

importance to be attached to those differing elements, and taking into account the

degree of similarity in the goods and how they are marketed. I must compare the

marks at issue, having regard to the distinctive character of each and assuming normal

and fair use of the marks across the full range of the goods within their respective

specifications. I must do all of this from the standpoint of the average consumer for

the goods in question.

60. The relevant date is the date the subject application was filed, viz., 19

December 2003.

Earlier trade marks

61. The term “earlier trade mark” is defined in section 5 of the Ordinance.

References to an earlier trade mark shall be construed as including a trade mark in

23

respect of which an application for registration has been made under the Ordinance

and which, if registered, would constitute an earlier trade mark under or by virtue of

section 5(1)(a), subject to its being so registered.

62. As I have pointed out, Annex A to Annex D of the Grounds of Opposition

list out the trade marks relied upon by the opponents in launching the oppositions

against the subject application. There are numerous of them and it is just

impracticable to set them all out here, suffice to say that Mr. Shipp has helpfully

worked that out and confirmed that insofar as marks registered in Hong Kong are

concerned, only the followings are relied upon by the opponents in relation to the

present case:-

Registration

No.

Trade Mark Class

Specification & Disclaimer

1993B03735

25

shirts, slacks, sweaters,

shorts, jackets, hats, socks,

rainwear.

(Registration of this Trade

Mark shall give no right to

the exclusive use, separately,

of the letters "PGA" and a

device of a golfer.)

2001B02725

8

hand-operated golf divot

repair tools included in Class

8.

(Registration of this Trade

Mark shall give no right to

the exclusive use of a device

of a golfer.)

24

2001B02061

28

sporting goods, golf bag

tags, golf ball markers, golf

ball retrievers, golf balls,

golf bags, golf clubs, golf

club headcovers, golf tees;

games related to golf; all

included in Class 28.

(Registration of this Trade

Mark shall give no right to

the exclusive use of a device

of a golfer.)

2001B02062

41

entertainment services

relating to golf, conducting

professional golf

tournaments, operating golf

clubs, distribution (other

than transportation) of

television programmes

relating to golf; all included

in Class 41.

(Registration of this Trade

Mark shall give no right to

the exclusive use of a device

of a golfer.)

300222029

41

entertainment services, namely

conducting professional golf

tournaments and the production

of televised golf events; all

included in Class 41.

25

2004B06737 004B06737 41 41

entertainment services in the

nature of conducting golf

tournaments; all included in

Class 41.

entertainment services in the

nature of conducting golf

tournaments; all included in

Class 41.

(Registration of this Trade

Mark shall give no right to

the exclusive use of the word

“CHAMPIONSHIP" and a

device of a golfer.)

(Registration of this Trade

Mark shall give no right to

the exclusive use of the word

“CHAMPIONSHIP" and a

device of a golfer.)

63. I just note that the trade marks under registration numbers 1993B03735,

2001B02725, 2001B02061 and 2001B02062 are, in essence, the PGA TOUR Logo as

I have discussed and reproduced under paragraph 33 above. For the discussions

below, I will just refer to these marks as the PGA TOUR Logo. I also note that this

PGA TOUR Logo also appears as the distinctive and dominant element of the trade

marks under registration numbers 300222029 and 2004B06737. For the discussions

that follow below in relation to the comparison of the marks at issue, I would

therefore mention only the PGA TOUR Logo, as obviously PGA TOUR Logo is more

close to the subject mark than the marks under registration numbers 300222029 and

2004B06737 are, so if PGA TOUR Logo cannot succeed against the subject mark,

there is no chance that the other marks can.

64. I should also record that other than the abovementioned registered marks in

Hong Kong, the opponents also wish to rely upon certain unregistered marks, which

include the mere word mark “PGA TOUR”, to launch opposition against the subject

mark under section 12(3) of the Ordinance. The opponents are entitled to do so

because the term “earlier trade mark” as defined in section 5 includes, inter alia, a

trade mark which, at the date of the application for registration of the other trade mark

or, where appropriate, at the date of the priority claimed in respect of that application

for registration, was entitled to protection under the Paris Convention as a well-known

trade mark. Section 4 of the Ordinance defines what a well-known trade mark would

be. I do not propose to go into the details of well-known trade marks, suffice to say

that on evidence, as I have discussed above, I could only find that at the date of the

26

application for registration of the subject mark, the opponents might have acquired a

certain reputation and goodwill in connection with the showing of televised golf

events to viewers in Hong Kong which featured the PGA TOUR Logo and the word

mark “PGA TOUR”. Without further evidence of “PGA TOUR” being well known

in Hong Kong, I do not find that “PGA TOUR” qualified as a well-known trade mark,

and hence an earlier trade mark, for the purposes of launching an opposition under

section 12(3). The same can be said of the other unregistered marks the opponents

wish to rely upon. I mention in passing that “PGA TOUR” as an unregistered mark

has just been considered above as the subject matter of opposition under section

12(5)(a), but that opposition, as I have so hold, has failed.

The average consumer

65. As the case law indicates, in the global assessment of the likelihood of

confusion, account should be taken of the average consumer of the category of goods

and services concerned, who is reasonably well informed and reasonably observant

and circumspect. It should also be borne in mind that the average consumer’s level

of attention is likely to vary according to the category of goods or services in question

(Mundipharma AG v Office for Harmonisation in the Internal Market (Trade Marks

and Designs) (OHIM) – Altana Pharma (RESPICUR) (T-256/04) [2007] E.C.R.

II-449 at [42] and the case law cited), and I have to determine the manner in which

these goods and services are likely to be selected by the average consumer in the

course of trade.

66. In that regard, it should be noted that the goods and services at issue vary

widely in nature and price, and which may be placed on the market for a large public

of both professionals and non-professionals. Consequently, while it is possible that a

consumer may pay more attention to the choice of mark when he purchases a specific

golf club at a significant price, such an approach on the part of the consumer cannot

be presumed in relation to all of the goods in the sector at issue, with the result that it

falls to the proponent of any claim that consumer may pay more attention to the

choice of mark to support such a claim with facts or evidence (see, to that effect,

judgment in New Look Ltd v Office for Harmonisation in the Internal Market (Trade

Marks and Designs) (OHIM) – Naulover (NLSPORT, NLJEANS, NLACTIVE and

NLCollection) [2005] E.T.M.R. 35 at [43]; cited with approval in Nike International

27

Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(OHIM), Deichmann SE [2012] E.T.M.R. 8).

67. Nonetheless, as Mr. Shipp at the hearing is prepared to limit the opponents’

opposition to only those goods and services (hereinafter referred to as the

“objectionable goods and services”) I am going to set out at the paragraph

immediately following, I shall consider only those objectionable goods and services.

It is obvious that those objectionable goods and services are all related to the sport of

golf or golfing events. As such I just repeat my discussion at paragraph 44 above

and come to the view that the relevant public should be considered to be the average,

recreational golfer who goes to a sports shop to buy golf equipment and has to choose

between golf equipment among various brand names, and who is interested in golf

and likes to watch golf related shows available on television in Hong Kong. This

consumer should be considered as paying an increased level of attention due to the

technically specific nature of the goods at issue and the fact that they have to pay for

the televised golf events (as they are available only on subscription).

Comparison of goods and services

68. I list out below the objectionable goods and services, taken from the

specification of the subject application, which are relied upon by the opponents in the

present proceedings:-

Class 9 apparatus for measuring, analyzing and reporting of golfer's swings, golf club gauges; golf simulation apparatus; portable golf club head speedometers; video practice systems for golfers; golf entertainment systems; parts and fittings for the aforementioned goods

Class 16 books for golfers, golf course planners, golf course plans, golf course yardage charts, photographs, stationery or instructional and teaching material; golf stickers, decals, commemorative golf stamps, reference books in the field of golf, magazines in the field of golf, catalogs featuring golf, commemorative game and souvenir programs, statistical sheets for golf topics

28

Class 18 golf umbrellas, bags for carrying golf tees and golf balls, covers for golf clubs, golf bags

Class 24 golf towels

Class 25 clothing, footwear and headgear; clothing for men, women and children; coats, jackets, suits, pants, slacks, skirts, blouses, shirts, sweaters and underwear for men, women and children; sport-clothing and waterproof wear; t-shirts, sports shirts, rugby shirts, polo shirts, golf shirts, sweat shirts, sweat pants, sweat bands, shorts, slacks, culottes, jogging suits, rain wear, snow suits, outer clothing; bath robes, bathing drawers, bathing suits, bathing trunks, beach clothes, belts (clothing), drawers (clothing), gloves (clothing), gowns (dressing-), headbands (clothing), jerseys (clothing), neckties, parkas, pelerines, pullovers, pajamas, socks, stockings, trouser straps, trousers, vests, waistcoats; hats, caps, toques, ear-muffs, visors, scarves; hosiery; footwear for ordinary use and for use in sport, shoes and footwear for golf, boots, sneakers, loafers, shoes, leisure shoes, sandals and slippers; water-resistant jackets for playing golf, waterproof pants for playing golf; all included in Class 25.

Class 28 sporting articles and sports equipment; games relating to golf; children's golf clubs, golf clubs, irons, heads, shafts, handles and grips all for golf clubs, golf putters, golf ball spotters, golf hits counters, golf bag travel covers, golf bag stand, golf tees, golf balls, head covers for golf clubs, golf club cases, golf bags (with or without wheels), divot repair tools, covers for golf bags, golf ball retriever, grips for golf clubs, golf training aids, nets for practicing golf, golf tee bags, caddy bags, golf apparatus, bags adapted to carry golf articles, green markers, golf electronic games, golf umbrellas, golf ball cleaners, golf club components, golf practice nets and mats, golf swing alignment apparatus, golf buggies, golf gloves, golf club stands, parts and fittings for all the aforesaid goods; portable golf driving ranges; playing cards; all included in Class 28.

Class 35 advertising and business services relating to sporting events; business management of sporting facilities and venues including golf courses; retail advisory services

29

relating to the sale of golf and sporting equipment, printed matters, magazines, publications, posters, calendars, personal planners, postcards and stickers, gloves for golf, golf clubs, balls for golf, footwear, headgear, sports clothing, luggage, tote bags, backpacks, wallets, luggage tags, umbrellas, school bags, waist pouches and waist packs, athletic bags, beach bags, book bags, gym bags, garment bags for travel, briefcases, key cases, coin purses, handbags, shopping bags, shoulder bags, golf umbrellas, golf shirts, golf vests, golf jackets, golf socks, golf hats, golf shorts, golf caps, gym shirts, gym shorts, gym pants, T-shirts, tank tops, trousers, tunies, turtlenecks, banners, magnets, buttons, lapel pins, stick pins, all related to golf; all included in Class 35.

Class 41 provisions of golfing facilities; organising and conducting golf tournaments and competitions; golf instruction and training; publication of magazines and printed matter; golf handicapping services; provision of information relating to golf; operating golf clubs; distribution of televised golf events; entertainment and education services relating to the playing of golf; golf tuition; exhibitions, conferences, seminars and workshops, all relating to golf; production of television and video programs; rental and hire of sports equipment; the production and distribution of radio and television broadcasts of golf games, golf events and programs in the field of golf; conducting and arranging golf clinics and coaches clinics and golf events; special events and parties; fan club services; provision of miniature putting golf course; information and consultancy services relating to golf; professional advisory and consultancy services relating to golf; all included in Class 41.

69. In Gérard Meric v Office for Harmonization in the Internal Market (Trade

Marks and Designs) (OHIM) Case T-133/05, at paragraph 29 the General Court said:

“In addition, the goods can be considered as identical when the goods designated by the

earlier mark are included in a more general category, designated by the trade mark

application (Case T-388/00 Institut für Lernsysteme v OHIM – Educational Services (ELS)

[2002] ECR II-4301, paragraph 53) or when the goods designated by the trade mark

application are included in a more general category designated by the earlier mark (Case

T-104/01 Oberhauser v OHIM – Petit Liberto (Fifties) [2002] ECR II-4359, paragraphs 32

and 33; Case T-110/01 Vedial v OHIM – France Distribution (HUBERT) [2002] ECR

II-5275,paragraphs 43 and 44; and Case T-10/03 Koubi v OHIM – Flabesa (CONFORFLEX)

[2004] ECR II-719, paragraphs 41 and 42.”

30

70. The comparison of the goods and services must concern the description of

the goods and services covered by the marks at issue and not the goods and services

for which the trade marks are actually used. In this connection, as the objectionable

goods and services and the goods and services covered by the various registrations of

the opponents can all be described as related to the sport of golf or golfing events, I

am of the view that the goods and services covered by the marks at issue were

identical or similar.

Comparison of marks

71. According to consistent case law, in order to assess the degree of similarity

between the marks concerned, it is necessary to determine the degree of visual, aural

and conceptual similarity between them and, where appropriate, to determine the

importance to be attached to those different elements, taking account of the category

of goods or services in question and the circumstances in which they are marketed

(see Lloyd Schuhfabrik Meyer v Klijsen Handel, paragraph 27).

72. In addition, the global assessment of the likelihood of confusion must, as

regards the visual, aural and conceptual similarity of the marks in question, be based

on the overall impression created by them, bearing in mind, in particular, their

distinctive and dominant components. The perception of the marks in the mind of

the average consumer of the goods or services in question plays a decisive role in the

global assessment of the likelihood of confusion (see Sabel BV v Puma AG, para 23;

Lloyd Schuhfabrik Meyer, para 25; and the order in P Matratzen Concord v OHIM

(Case C-3/03), para 29). In that regard, the average consumer normally perceives a

mark as a whole and does not proceed to analyse its various details (see Office for

Harmonisation in the Internal Market (Trade Marks and Designs) v Shaker di L.

Laudato & C. Sas, Limiñana y Botella, SL (C-334/05 P) [2007] E.C.R. I-4529 at [35]

and the case law cited).

73. Whilst the comparison must be made by examining each of the marks in

question as a whole, that does not mean that the overall impression conveyed to the

relevant public by a composite trade mark may not, in certain circumstances, be

dominated by one or more of its components (see OHIM v Shaker [2007] E.C.R.

I-4529 at [41] and the case law cited). It is only if all the other components of the

31

mark are negligible that the assessment of the similarity can be carried out solely on

the basis of the dominant element (OHIM v Shaker [2007] E.C.R. I-4529 at [42]).

Distinctive and dominant components of the opponents’ marks

74. The earlier trade marks that are relied upon by the opponents in the present

proceedings, as discussed at paragraphs 62 and 63 above, are the PGA TOUR Logo

and composite marks having the PGA TOUR Logo as the distinctive and dominant

element. I have already indicated that I will put aside those composite marks and

focus on the PGA TOUR Logo for the purpose of comparison of marks here.

75. At paragraphs 45 to 54 above, I have already discussed the respective

distinctive character of the word TOUR and the three-letter term PGA in relation to

goods and services related to the sport of golf or golfing events. In gist, both of

them do not have strong distinctive character.

76. As to the device of a golfer, I think it is beyond dispute that it is descriptive

of golf or golfing events. Such a view is borne out by the fact that registrations of

the PGA TOUR Logo are subject to a disclaimer of the golfer device.

77. Hence each of the elements in the PGA TOUR Logo does not have strong

distinctive character to stand on its own to identify the opponents’ goods and services.

For the discussions immediately following, it should be borne in mind, however, that

in any event, the possibly weak distinctive character of an element of a complex mark

does not necessarily imply that that element cannot constitute a dominant element

since—because, in particular, of its position in the sign or its size—it may make an

impression on consumers and be remembered by them (Inex SA v Office for

Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Wiseman—Representation of a cowhide) (T-153/03) [2006] E.C.R. II-1677 at [32];

see also, to that effect, Avex Inc v Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM) (Ahlers (a)) (T-115/02) [2004] E.C.R. II-2907 at

[20]).

78. Summing up from the above, both the word TOUR and the three-letter term

PGA are not strong distinctive elements, but it can be argued that they are the more

32

distinctive and dominant components than the golfer device. Having said that, the

golfer device, given its relative position and size, is not to be overlooked in assessing

the overall distinctiveness of the PGA TOUR Logo.

Distinctive and dominant components of the subject mark

79. The subject mark here is a mere word mark consisting of the following

words in this order: China Professional Golfers' Association Tour Tournament Players

Club. It follows from the discussion above that TOUR does not have a strong

distinctive character in relation to the objectionable goods and services. On the other

hand, the word China has the effect of giving geographical indication; and

“Tournament Players Club” are descriptive of certain sport competition or game.

“Professional Golfers' Association” are directly descriptive of golf or golfers’

association. I consider that none of the words in the subject mark is able to dominate

the subject mark, and none of them can be overlooked.

Visual similarity

80. Visually speaking, taking each of the marks as a whole, the similarity

resulting from their only common element, namely, TOUR, is strongly mitigated by

the presence of the different elements in the respective marks that as discussed above

cannot be overlooked. The overall effect is so different that there is almost no visual

similarity between the PGA TOUR Logo and the subject mark.

Aural similarity

81. Aurally, the subject mark would be called China Professional Golfers'

Association Tour Tournament Players Club. As to the PGA TOUR Logo, although

the word TOUR is in a more prominent position than PGA and being much larger in

size, nonetheless I think people would call it PGA TOUR by reading first from the top.

China Professional Golfers' Association Tour Tournament Players Club is an

eight-word mark beginning with China and ending with Club, whereas PGA TOUR

Logo has only two words. Again the degree of aural similarity between them is so

low that it can be regarded almost as no similarity.

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Conceptual similarity

82. Conceptually speaking, although given the descriptive nature of each

component involved, both marks can be said to allude to a sport event, the perceptions

of the two marks are quite different. The only common element, namely, TOUR,

does not have an independent existence in the subject mark apart from the whole

expression China Professional Golfers' Association Tour Tournament Players Club.

The subject mark is a mere word mark to be remembered by all its constituent

elements, beginning with the geographical indication China and ending with the word

Club. So one would perceive the subject mark to be concerned with a sport event

that takes place in or otherwise connected with China, whereas the PGA TOUR Logo,

with the golfer device, clearly alludes to the playing of golf, but without any

geographic indication of the golf event. The overall effect is that there is a low

degree of conceptual similarity between the marks.

Distinctiveness of the PGA TOUR Logo

83. A mark may be particularly distinctive either per se or because of the

reputation it enjoys with the public. The more distinctive an earlier mark, the greater

will be the likelihood of confusion (Sabel BV v Puma AG).

84. 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, 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

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Attenberger [1999] E.C.R. I-2779; Lloyd Schuhfabrik Meyer v Klijsen Handel [1999]

E.T.M.R. 690).

85. As I have analysed above, I do not find there is any components in the PGA

TOUR Logo that can be considered possessing strong distinctive character. As far as

the inherent distinctive character of the PGA TOUR Logo as a whole is concerned, I

do not find it to be a strong distinctive mark.

86. As to the question whether the distinctiveness of the mark is enhanced

because of the opponents’ use of it, I have discussed above and found that the

opponents might have acquired a certain reputation and goodwill in connection with

the showing of televised golf events to viewers in Hong Kong in which the PGA

TOUR Logo featured. I am prepared to accept that the distinctive character of the

mark has been enhanced no more than that extent.

Likelihood of confusion

87. The global assessment that I am required to undertake implies some

interdependence between the relevant factors. Thus, a lesser degree of similarity

between those goods or services may be offset by a greater degree of similarity

between the marks, and vice versa.

88. In the present case, having found that the parties’ goods and services are

identical or similar insofar as the objectionable goods and services in the specification

of the subject application are concerned, I find that visually, aurally and conceptually

the marks are not similar. Against these is my finding that the PGA TOUR Logo is

of weak inherent distinctive character but has acquired a limited enhanced degree of

distinctive character through use in televised golf programmes.

89. It has been said that the more distinctive the earlier mark, the greater the risk

of confusion (SABEL, paragraph 24). Marks with a highly distinctive character,

either per se or because of the reputation they possess on the market, enjoy broader

protection than marks with a less distinctive character (see Canon, paragraph 18, and

Lloyd Schuhfabrik Meyer, paragraph 20). I do not find the present one to be such a

case. As obvious from the discussions so far, none of the components in any of the

35

marks has strong distinctive character, some could be said to be even of weak

distinctive character.

90. How a tribunal like ours should approach the global assessment under such

circumstances had been explored in the case Digipos Store Solutions Group Ltd v.

Digi International Inc [2008] R.P.C. 24. The English Chancery Court in that

decision has the following observation:-

“….A weak mark is, in practice, likely to have a reduced scope because there is a lesser

likelihood that other marks will be confused with it, if all that the respective marks have in

common is the descriptive element. That, in turn, is because, as a matter of fact, the

common element would not be thought by the average consumer to signal that the goods in

relation to which the respective marks are used come from the same trade source, not

because of any special approach under section 5(2)(b) to marks composed of descriptive

elements: Reed Executive [2004] RPC 767 and L'Oréal SA v OHIM (Case C-235/05P) 27

April 2006.” (paragraph [42])

91. Going back to the present case, I have already come to the conclusion that

the marks at issue can be readily distinguished at the visual, aural and conceptual

levels. As said in Reed Executive [2004] RPC 767, “Where you have something

largely descriptive the average consumer will recognise that to be so, expect others to

use similar descriptive marks and thus be alert for detail which would differentiate

one provider from another.”

92. In the context of assessing passing off, I have already examined the

possibility of deception and confusion between the mere words PGA TOUR and the

subject mark. As discussed, I believe the average consumer would be able to

distinguish a host of PGAs, and would not confuse the subject mark which contains

clearly the nationality identity of the applicant with the word mark PGA TOUR of the

opponents. This could only be more so with respect to the PGA TOUR Logo. I do

not think I need to repeat my analysis of evidence and the arguments here.

93. In conclusion, with regard to the global assessment of the likelihood of

confusion between the marks in question, first, the marks at issue are visually, aurally

and conceptually not similar; secondly, any similarity arising from the fact that they

share the common element TOUR is unlikely to lead to any real risk of confusion, the

36

view must be taken that the visual, aural and conceptual difference is sufficient to

counteract any similarity, with the result that the marks at issue are different overall;

and thirdly, the identical or similar goods and services concerned are such that they

are usually selected by those who are interested in the sport of golf and are willing to

pay for the more expensive golf-related products and services and watch televised

golf programs which are available only on subscription, with the result that the level

of attention paid to the selection of goods and services is higher than average,

ordinary consumers. It follows that, notwithstanding the identity or similarity of the

notional goods and services insofar as the objectionable goods and services are

concerned, the differences existing in this case between the conflicting marks are such

that there is not a likelihood of consumers being confused into believing that the

goods and services provided by the applicant are those of the opponents or provided

by some undertaking linked to them.

94. It follows that the ground of opposition under section 12(3) fails.

Conclusion

95. As the opponents have not succeeded in any of the grounds of opposition

they eventually pursue, I award the applicant costs. Subject to any representations,

as to the amount of costs or calling for special treatment, which either the opponent or

the applicant 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.

(Frederick Wong)

for Registrar of Trade Marks

10 April 2012

37

Appendix I

Class 9

optical apparatus and instruments; binoculars sunglasses and visors; eyeglass frames;

eyewear straps and chains; cases for eyeglasses and sunglasses; magnets; audio, video,

computer and laser discs, pre-recorded audio and video cassettes, pre-recorded audio

and video tapes, pre-recorded compact discs, pre-recorded computer discs, CD Roms

and non-printed publication; cinematographic films; multimedia, data carriers and

recorded media; computer accessories, namely mouse pads, mice, disc cases,

computer carry-on cases, keyboard wrist pads, computer monitor cardboard frames,

computer programs for viewing information, statistics or trivia about golf; computer

software including screen savers featuring golf themes, computer software to access

and view computer wallpaper, computer browsers and computer cursors; computer

game software; video game software and programs, video game cartridges, joysticks

and video game machines for use with televisions; radios and telephones; disposable

cameras; credit cards and pre-paid telephone calling cards magnetically encoded, cell

phone accessories, namely face plates and cell phone covers, downloadable video

recordings, video stream recordings, and audio recordings in the field of golf provided

over the internet; downloadable computer software for viewing databases of

information, statistical information, trivia, polling information, and interactive polling

in the field of golf provided over the internet ; downloadable computer game software;

video game programs, interactive video games and trivia game software provided

over the internet; downloadable computer software for use as screensavers, wallpaper,

browsers and cursors over the internet; downloadable electronic publications in the

nature of magazines, newsletters, coloring books, game schedules provided over the

internet; downloadable catalogs provided over the internet featuring an array of

golf-themed products; downloadable greeting cards provided over the internet;

apparatus for measuring, analyzing and reporting of golfer's swings, golf club gauges;

golf simulation apparatus; portable golf club head speedometers; distance measuring

apparatus; distance recording apparatus; inclinometers; speed indicators; water level

indicators; air analysis apparatus; automatic vending machines and mechanisms for

coin operated apparatus; video practice systems for golfers; golf entertainment

systems; parts and fittings for the aforementioned goods; all included in Class 9.

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Class 14

goods in precious metals or coated therewith, not included in other classes; unwrought

and semi-wrought precious metals; ashtrays, belt buckles, statuettes, commemorative

shields, trophies, key rings, tableware (other than knives, forks and spoons) and

badges all of precious metal; jewellery, precious stones; horological and chronometric

instruments; earrings, tie pins, tie clips, paste jewelry (costume jewelry), ornamental

pins, amulets (jewellery), hat ornaments of precious metal, cuff links, purses of

precious metal, pearls, stopwatches, clocks, watches, parts and fittings of clocks and

watches, watch crystals, watch straps, watch chains, watch cases, alarm clocks, wrist

watches, smoker's articles of precious metal; all included in Class 14.

Class 16

paper, cardboard and goods made from these materials not included in other classes;

printed matter; bookbinding material; adhesive for stationery or household purposes;

artist's materials; paint brushes; typewriters and office requisites; plastic and paper

materials for packaging; modeling materials; books for golfers, golf course planners,

golf course plans, golf course yardage charts, photographs, stationery or instructional

and teaching material; periodicals, newspapers, gift wrap, agendas; golf stickers,

decals, commemorative golf stamps, collectible cardboard trading discs, memo boards,

clipboards, paper coasters, post cards, place mats of paper, note cards, memo pads,

note pads, ball point pens, rubber bands, pencils, pen and paper holders, desktop

document stands, scrap books, rubber stamps, erasers; paper banners and flags,

bookmarks, ring binders, stationery folders, wirebound notebooks, portfolio

notebooks, unmounted and mounted photographs, posters, calendars, bumper stickers,

book covers, wrapping paper, children's activity books, children's coloring books,

statistical books, guide books, and reference books in the field of golf, magazines in

the field of golf, catalogs featuring golf, commemorative game and souvenir programs,

paper pennants, stationery, stationery-type portfolios, post cards, invitation cards,

certificates, greeting cards, Christmas cards, holiday cards, statistical sheets for golf

topics, newsletters, brochures, pamphlets, and game schedules; all included in Class

16.

Class 18

leather and imitations of leather goods; trunks and travelling bags; whips, harness and

39

saddlery; walking sticks; animal skins, hides; athletic bags, shoe bags for travel,

umbrellas, backpacks, baby backpacks, duffel bags, tote bags, luggage, luggage tags,

patio umbrellas, valises, attaché cases, billfolds, wallets, briefcases, canes, business

card cases, book bags, all purpose sports bags, golf umbrellas, gym bags, lunch bags,

purses, coin purses, fanny packs, waist packs, cosmetic cases, garment bags for travel,

bags for carrying golf tees and golf balls, covers for golf clubs, golf bags, handbags,

key cases, knapsacks, suitcases, toiletry cases, trunks and bags for traveling and

rucksacks; all included in Class 18.

Class 21

sprinkler installations for use on golf course; household or kitchen utensils and

containers (not of precious metal or coated therewith); combs and sponges; brushes;

brush-making materials; articles for cleaning purposes; steelwool; unworked or

semi-worked glass; glassware, porcelain and earthenware not included in other classes;

cups, mugs or flasks all included in Class 21.

Class 24

textiles and textile goods not included in other classes; textile fabrics for use in the

manufacture of sportswear; household linen; bed linen; table linen; bed and table

covers; bed blankets; table mats (not of paper); table napkins; coasters of table linen

or of textile; loose furniture coverings; throws (furniture coverings); sheets (textile),

pillow cases, duvet covers; bed spreads; towels; golf towels; face towels; window

curtains, door curtains, textile or plastic curtains; wall hangings of textile; banners;

bunting; flags (not of paper); handkerchiefs; cushion covers; textiles for making into

cushions and cushion covers; embroidery kits (textiles); textile in the form of kits of

sewing; traced cloth for embroidery; all included in Class 24.

Class 25

clothing, footwear and headgear; clothing for men, women and children; coats, jackets,

suits, pants, slacks, skirts, blouses, shirts, sweaters and underwear for men, women

and children; sport-clothing and waterproof wear; t-shirts, sports shirts, rugby shirts,

polo shirts, golf shirts, sweat shirts, sweat pants, sweat bands, shorts, slacks, culottes,

jogging suits, rain wear, snow suits, outer clothing; bath robes, bathing drawers,

bathing suits, bathing trunks, beach clothes, belts (clothing), drawers (clothing),

40

gloves (clothing), gowns (dressing-), headbands (clothing), jerseys (clothing),

neckties, parkas, pelerines, pullovers, pajamas, socks, stockings, trouser straps,

trousers, vests, waistcoats; hats, caps, toques, ear-muffs, visors, scarves; hosiery;

footwear for ordinary use and for use in sport, shoes and footwear for golf, boots,

sneakers, loafers, shoes, leisure shoes, sandals and slippers; water-resistant jackets for

playing golf, waterproof pants for playing golf; all included in Class 25.

Class 28

sporting articles and sports equipment; games relating to golf; children's golf clubs,

golf clubs, irons, heads, shafts, handles and grips all for golf clubs, golf putters, golf

ball spotters, golf hits counters, golf bag travel covers, golf bag stand, golf tees, golf

balls, head covers for golf clubs, golf club cases, golf bags (with or without wheels),

divot repair tools, covers for golf bags, golf ball retriever, grips for golf clubs, golf

training aids, nets for practicing golf, golf tee bags, caddy bags, golf apparatus, bags

adapted to carry golf articles, green markers, golf electronic games, golf umbrellas,

golf ball cleaners, golf club components, golf practice nets and mats, golf swing

alignment apparatus, golf buggies, golf gloves, golf club stands, parts and fittings for

all the aforesaid goods; portable golf driving ranges; playing cards; all included in

Class 28.

Class 34

smoker's articles; matches; cigarettes; cigarette paper and filters; ashtrays, pipes; cigar

cutters, lighters; fuel cartridges for lighters; containers, boxes or cases for cigars or

cigarettes, cigars, humidors; match boxes; all included in Class 34.

Class 35

advertising and business services relating to sporting events; business management of

sporting facilities and venues including golf courses; business management assistance

in relation to licensing or franchising interactive entertainment software, computer

game software, computer and video game apparatus, electronic games adapted for use

with television receivers, all related to golf; promotional management for sports

personalities; retail services relating to the sale of sporting goods, clothing, footwear,

headgear, textile, household goods and smokers articles; advice and assistance in the

selection of goods; marketing research; professional business consultancy; public

41

relations; psychological testing for selection of personnel; rental of automatic vending

machines; compilation of information into computer databases; retail advisory

services relating to the sale of golf and sporting equipment, printed matters,

magazines, publications, posters, calendars, personal planners, postcards and stickers,

gloves for golf, golf clubs, balls for golf, footwear, headgear, sports clothing, luggage,

tote bags, backpacks, wallets, luggage tags, umbrellas, school bags, waist pouches and

waist packs, athletic bags, beach bags, book bags, gym bags, garment bags for travel,

briefcases, key cases, coin purses, handbags, shopping bags, shoulder bags, golf

umbrellas, golf shirts, golf vests, golf jackets, golf socks, golf hats, golf shorts, golf

caps, gym shirts, gym shorts, gym pants, T-shirts, tank tops, trousers, tunies,

turtlenecks, banners, magnets, buttons, lapel pins, stick pins, all related to golf; all

included in Class 35.

Class 37

construction and repair of recreational and sports grounds including golf courses;

construction, maintenance, installation and repair services; maintenance of golf

courses; building and construction of drainage and filtration installations on golf

courses; installation and repair of recreational and sports apparatus; machinery

installation, maintenance and repair; installation, maintenance and repair of electric

appliances; installation, maintenance and repair of lighting apparatus; interior

decoration; all included in Class 37.

Class 41

provisions of golfing facilities; organising and conducting golf tournaments and

competitions; golf instruction and training; publication of magazines and printed

matter; golf handicapping services; provision of information relating to golf;

operating golf clubs; distribution of televised golf events; entertainment and education

services relating to the playing of golf; golf tuition; exhibitions, conferences, seminars

and workshops, all relating to golf; production of television and video programs;

rental and hire of sports equipment; the production and distribution of radio and

television broadcasts of golf games, golf events and programs in the field of golf;

conducting and arranging golf clinics and coaches clinics and golf events; special

events and parties; fan club services; provision of miniature putting golf course;

information and consultancy services relating to golf; professional advisory and

42

consultancy services relating to golf; all included in Class 41.

Class 42

planning, development and design of golf courses; designing, developing and

licensing interactive entertainment software, computer game software, computer and

video game apparatus, electronic games adapted for use with television receivers, all

related to golf; legal services in relation to licensing or franchising interactive

entertainment software, computer game software, computer and video game apparatus,

electronic games adapted for use with television receivers, all related to golf;

engineering services in relation to licensing or franchising interactive entertainment

software, computer game software, computer and video game apparatus, electronic

games adapted for use with television receivers, all related to golf; hosting web sites

relating to golf; creating and maintaining web sites relating to golf for others; all

included in Class 42.

43