THE EXPERT EVIDENCE
242 Each party adduced expert evidence relevant to the issues in the case. The applicants adduced evidence from Professor Lawrence Lockshin and the respondents adduced evidence from Dr Stephen Downes. Each expert prepared a written report and, in Professor Lockshin's case, a written report in reply. These reports addressed issues of consumer behaviour, principles of marketing and brand identification and the issues in the case, including whether the respondents' mark is deceptively similar to that of the applicants. Each expert was cross-examined.
243 The parties proceeded on the basis that the expert evidence was admissible and that is clearly correct (Sydneyside Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549; (2002) 55 IPR 354 at [82] per Weinberg and Dowsett JJ). Nevertheless, the ultimate decision is made by the Court: Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 387 per Gummow J (with whom Black CJ and Lockhart J agreed).
244 Important matters in assessing the weight to be placed on the expert evidence include the correctness of the assumptions made by the expert and the cogency of the expert's reasoning. An important feature of this case is the reliance Professor Lockshin placed on the evidence of cases of actual confusion which he was asked to assume were correct. I have addressed that evidence. Dr Downes expressed the opinion that reliance could not be placed on those matters.
245 I will summarise the evidence given by each expert and then address the important points of difference between them as identified by the parties when addressing the issues in the case.
246 Professor Lockshin has a Bachelor of Arts (Humanities), a Master of Science (Viticulture and Agricultural Economics) and a Doctor of Philosophy - Marketing. He is currently the Head of the School of Marketing of the University of South Australia Business School. He has held that position since 2011 and in that position he manages over 60 staff members. He is a senior member of the Business School Executive, a researcher and PhD supervisor, and a lecturer in "Marketing Principles: Trading and Exchange". Since 2003, Professor Lockshin has been Professor of Wine Marketing and Senior Researcher at the Ehrenberg-Bass Institute for Marketing Science (the Institute) which is part of the School of Marketing. The Institute carries out what Professor Lockshin described as basic empirical research to understand buyer behaviour, that is, how buyers make purchasing decisions, and he said that the Institute's purpose is to develop evidence-based marketing principles of general application. Professor Lockshin has more than 30 years' experience working in the wine industry. He has published widely and has received substantial research grants and funding. He has had previous experience giving evidence as an expert witness.
247 On or about 29 May 2017, Professor Lockshin received a letter of instructions from the applicants' solicitors in which he was asked to address a number of questions. He was given a copy of the pleadings and he was asked to assume that a number of allegations in the pleadings were correct.
248 Professor Lockshin was first asked to provide an opinion concerning the reputation and goodwill in the Mitolo mark and the association of that mark with the applicants. He said that he had heard of the wine brand, Mitolo, before in South Australia and that he had purchased their wines infrequently. He had no personal or professional knowledge (based on specific research) of the reputation of Mitolo Wines.
249 Professor Lockshin said that he proceeded on the basis that the term "brand" and the term "mark" were interchangeable. He understood that there is a specific legal meaning of the words "mark" and "trade mark". He said that he would use the common marketing understanding of the word "brand". He referred to a number of general principles on the assumptions that he was asked to make and said that since no other brand or mark carried the name "Mitolo" from its inception, the exclusivity of the association of the mark with the brand name until the new brand came into the market was self-evident. He said that consumers will associate the two names as one brand and he said that from this reasoning, he will call Mitolo Wines a brand, which is the same as the trade mark.
250 Professor Lockshin said that he had no personal experience of Mitolo Wines or "V Mitolo & Son or Vito Mitolo & (and) Son" that would lead him to know about any changes in associations of the Mitolo mark. Professor Lockshin expressed the opinion that there is no difference in how consumers respond to either the word "and" or the symbol "&" when seeing these as part of a brand name. Professor Lockshin said that drawing on his experience, he believed that consumers of the applicants' wines would likely see any wine with that name as part of the branding as belonging to the brand they are most familiar with, which, in this case, is likely to be Mitolo Wines.
251 Professor Lockshin expressed some general opinions about how persons reacted to brands. He said that people learn about brands through usage as well as through advertising and other communications. He said that brands are not important to most people and, as a result, the information about a brand is stored in memory, typically in a very general way. The memory storage is linked to previous experiences, comments, marketing materials and other communication devices. He said that in marketing and psychology, these linkages are called "nodes". Professor Lockshin said that the sight or mention of a trigger or cue, in this case the name "Mitolo", can be enough to activate the node and bring the name "Mitolo" to active memory. He expressed the following opinion:
Unless V Mitolo or Vito Mitolo and Son have established unique nodes in memory, the existing Mitolo link will most likely be activated and added to with any contact, even if that contact is with the respondent's product.
252 Based on the actual examples of mistake or confusion with which he was provided, namely, those set out in para 15.3 of the Statement of Claim as appearing on Facebook, Instagram, in telephone calls and emails about the V. Mitolo wines, Professor Lockshin expressed the opinion that they are examples of how consumers know the name "Mitolo" and associate any reference to it with their earliest and strongest memory associated with the brand and that this was typical consumer behaviour.
253 Professor Lockshin said that there was a strong likelihood that the more communications and sales by V. Mitolo and Son using the name "Mitolo" there are, the more there will be an association with the Mitolo Wines brand. He said that consumers assume that products bearing the same name are made by the same producers.
254 Professor Lockshin expresses the opinion that the only way to ensure that customers are able to differentiate between the two marks in question is to remove the Mitolo name from one of the two marks. In Professor Lockshin's opinion, if this is not done confusion will continue to occur.
255 Professor Lockshin expresses the opinion based on two matters that a survey to test whether consumer confusion existed between the two brands would not be useful. First, he considers that there was enough evidence of confusion for him to feel confident that consumers coming into contact with the V (Vito) Mitolo and Son product believe it to be the same brand as Mitolo Wines. Secondly, Professor Lockshin considers that a survey of wine consumers in Australia, or even a more focused survey of wine consumers in South Australia, would have to recruit a very large sample to obtain enough wine drinkers familiar with the wines of Mitolo Wines and the wines of V (Vito) Mitolo and Son to be able to make a statistically valid judgment of confusion. Such an undertaking would be both expensive and time consuming and would, in Professor Lockshin's opinion, be very likely to show the exact confusion evident from the evidence presented.
256 Professor Lockshin expresses the opinion that consumers do not process product information very deeply and that most of the mental processing is based on recognition using cues linked to memories. Based on his instructions, he deduced that there were approximately 240,000 instances of consumers coming into contact with Mitolo Wines. Professor Lockshin said that he did not have the production figures of V. Mitolo and Son, but understood them to be substantially smaller. Professor Lockshin considers that consumers who have had previous experience or awareness of Mitolo Wines and who see any instance of the word "Mitolo" and a wine product are likely to see the product as related to Mitolo Wines. Professor Lockshin did not consider that any specific segment of the public was identified except for those purchasing wines above $13.98 in the Australian market. He states that this corresponds to the average price for bottled wine purchased in Australia. It seemed to him to be the similar price point to the range of V. Mitolo and Son wines.
257 Professor Lockshin expresses the view that the fact that two wines use a portion of the same name, Mitolo, is responsible for the confusion. He expresses the opinion that consumers do not read labels carefully and utilise cues learned from previous experience to identify brands. This means, according to Professor Lockshin, that the effects of the confusion are not transitory, but lasting because the memory nodes are added to rather than replaced with different experiences. Professor Lockshin said that from the evidence presented to him, he did not consider that inspecting the premises of the respondents and drinking the wine, presumably with the bottle on the table, would dispel the confusion. He considered that a consumer searching the internet, or using Instagram and Facebook, are more likely to find Mitolo Wines and not V. Mitolo and Son. After finding Mitolo Wines online, consumers contacted them, believing it was V. Mitolo and Son. Professor Lockshin considered this a clear case of confusion.
258 Professor Lockshin was asked to address the respondents' plea that premium wine consumers, being the relevant class of persons, were not likely to be misled by the first respondent's conduct. Professor Lockshin said that, based on his knowledge and experience, the use of the word "premium" is applied to a wide range of wine and wine consumers, and has no specific meaning. Professor Lockshin provided details of consumer behaviour. In typical retail shopping, buyers spend very little time in front of the shelf and about 80% of consumers spend four minutes walking into a store, choosing a bottle and lining up at the cash registers. Very few consumers pick up the bottle and look at the label closely. Research carried out tested whether there was a difference between low involvement and high involvement consumers and no difference was found. Low and high involvement consumers are psychological constructs that distinguish between those who drink wine without much interest in the details about the wine and those for whom wine is part of their lifestyle and who think and are more interested to learn about wine. Professor Lockshin refers to material that suggests that the actual purchase experience is similar between low and high involvement consumers, but the two types of consumers tend to focus on different aspects of the wine. Low involvement consumers focus more on price, grape variety and brand. High involvement consumers focus more on grape variety and region as well as price, though not as much as low involvement consumers.
259 Professor Lockshin said that other research had shown that consumers buy among multiple price tiers. What this means is that those who buy wines around $8-$10 also buy wines in the $10-$15 price tier. Consumers who buy at $15 also buy wines around $20. Professor Lockshin concludes from these circumstances that it is hard to identify a premium wine buyer. Mitolo wines and V. Mitolo and Son both sell wines starting at around $14 and the majority of wines they sell are up to the mid-$30 range. Mitolo wines sell two high priced wines above that figure and these high priced wines are made in small quantities. They are not bought very often. Professor Lockshin expresses the opinion that it is impossible to specify a "premium wine consumer" with any degree of accuracy and that consumers tend to buy in several adjacent price tiers. They can move up to higher price tiers for a special occasion and move into a lower priced tier if the wine seems attractive.
260 Professor Lockshin concludes from this that there is no special class of consumers that buy the applicants' wines compared to a different group that buys the respondents' wines. The relevant class of person is exactly the same for both the respondents and the applicants, and consists of persons who buy wines around $14-$35. Professor Lockshin said that his expert opinion is as follows:
… the use of the name Mitolo on two different wine brands is likely to be confusing to wine buyers. Wine buyers, and for that matter consumers in general, tend not to focus on details when shopping and purchasing. They use simple cues to identify the product within the category. Cues that are similar will likely result in confusion, in the sense that consumers may intend to buy one brand, but could buy another that is identified using similar cues. The probability of this happening is related to the availability of the products on the shelf, wine list and or online.
261 In summary, Professor Lockshin has drawn on research and his own knowledge to express opinions as to the behaviour of consumers of wine up to and including the point of purchase, and the features of the wine market for determining whether the relevant market for the applicants' wines is premium wine consumers. Professor Lockshin then applies that research and knowledge to the facts presented to him by the applicants' solicitors and, in particular, the examples of confusion set out in para 15.3 of the Statement of Claim provided to him, and the additional information provided by the applicants' solicitors. Professor Lockshin then expresses an opinion as to the significance of the name "Mitolo" in the case of the applicants, and the use of V. Mitolo & Son or Vito Mitolo & (and) Son. In large measure, Professor Lockshin's opinions come down to the fact that his research and knowledge of the wine market and consumer behaviour is such as to confirm that the examples of mistake and confusion are, in fact, caused by, and consistent with, the common use of the name, Mitolo.
262 Professor Lockshin was cross-examined at some length. A key matter put to him was that a well-constructed logical survey would be the best way of determining consumer behaviour. It was put to him that he was relying on a number of anecdotes which did not provide a reliable basis for his opinion. Professor Lockshin did not change his opinion that a survey would not be useful for the reasons he gave in his report and he considered that the actual instances of confusion revealed a pattern which was a sufficient basis for the opinions he expressed.
263 Dr Downes has a Bachelor of Medicine, Bachelor of Surgery (MB,BS) and Master of Marketing. He is a Lecturer (sessional), School of Economics, Finance and Marketing at RMIT University and a Lecturer (sessional) Department of Management and Marketing Faculty of Business and Economics, University of Melbourne. He is the principal and director of QBrand Consulting Pty Ltd, a firm he established in 2003, which involves expert marketing evidence and survey design in legal and regulatory matters concerning trade practices, trade marks and advertising, and consulting in marketing strategy, brand strategy, consumer and B2B market research, content and creative development and copywriting. He has published and been involved in seminar and conference presentations. He said that he has worked continuously in marketing and communications since 1988.
264 On or about 31 August 2017, Dr Downes received a letter of instructions from the respondents' solicitors in which he was asked to address Professor Lockshin's report and provide his opinion as to a number of matters.
265 Dr Downes said that brand is a central concept in contemporary marketing and consumer behaviour, theory and practice. He said that since the 1980s in particular, the brand concept, the strategy and process of "branding" and the management of brands have become key issues for marketing and business management and for academic study in marketing. Brand theory, Dr Downes said, drew on elements of cognitive and social psychology, anthropology and cultural studies, and neurophysiology.
266 Dr Downes provided his opinions as to the concept of brands, brand image, brand personality and brand positioning. He said that the term "brand" had a well-established and much broader meaning and interpretation that differed significantly from the narrower legal use of the term "mark". He said that a brand is conceptualised as a network of associations in the mind of a consumer, while a mark can be thought of as equivalent to a brand identity element. Dr Downes also referred to the consumer response to packaging and labels.
267 Dr Downes was unaware of the respective businesses and brands of the applicants and the respondents prior to being approached and receiving instructions from the respondents' solicitors. Dr Downes said that the overall impression created by a package, including the label or labels applied to a wine bottle, was very important when considering consumer response. He made a number of observations of the differences between the Mitolo Wines wine labels on the one hand, and the V. Mitolo and Son wine labels on the other. He expresses the following opinions:
28. As I have noted above, the overall impression created by a package, including the label or labels applied to a wine bottle is very important when considering consumer response. Examining and comparing the ranges of bottled wine products produced and offered for sale by the Applicant and the Respondents, I make the following observations.
28.1 The Applicant's Mitolo wines labels make use of what I would regard as a formal layout with a sophisticated and elegant overall impression, accentuated by the use of classic and precise Roman and cursive fonts, symmetrical layouts, and the judicious use of dark colours and metallic inks or "foils". In my opinion, the brand image conveyed is of a serious and corporate wine producer offering sophisticated products.
28.2 The labels of the majority of the Respondents' products bearing the branding V.MITOLO AND SON generally have a distinctive "low-tech" style, with a simple, black and white colour scheme, the use of hand-drawn elements including lettering and graphic devices, and (often) of the facial silhouettes of the proprietors, creating what I would describe as an informal, non massproduced or "artisanal" overall impression. In my opinion, the brand image conveyed is of a small, family-owned, "hand-made" and "hands-on" brand.
28.3 The deliberately hand-made and low-tech graphic design approaches used by the Respondents and the consequent impression conveyed to consumers through the branding and labels of V.MITOLO AND SON products seems intended to support a "sincere" brand image and personality (with traits including down-to-earth, wholesome, honest, cheerful, family-oriented friendly). In my opinion, this is in keeping with a more relaxed, less serious brand positioning targeting consumers who have a relaxed approach to wine consumption.
28.4 By contrast, in my opinion the formal, elegant and classic impression as conveyed by the labels of the Applicant's Mitolo Wines products seems intended to, and is likely to, support a "sophisticated" brand image and personality (with traits including upper class, charming, smooth, goodlooking), targeted towards consumers who are seeking a more serious wine experience.
268 He also referred to the significance of the use of the letter "V" in the respondents' mark. He expressed the following opinion on that matter:
In my opinion, this creates the overall visual impression "V.MITOLO AND SON", that is, of a brand name that begins with V. From my observations, this naming format - the use of an initial letter before a descriptive word that together serve to identify a particular brand - has become familiar to consumers in recent years through the prominence of brands including the fashion jeans brand G-Star, the clothing brand J.Crew, the gaming console brand Xbox, and consumer electronics brands iPhone and iPad.
269 Dr Downes considered that this use of the letter "V" was likely to contribute to a different visual and verbal impression compared to that created by the use of the word "Mitolo" alone. Dr Downes was also of the opinion that the letter "V" as a significant graphic element of the respondents' labels, was likely to be important to many consumers in retaining and accessing the impression they have of the brand in their memory.
270 Dr Downes agreed with a number of Professor Lockshin's opinions. A short summary of the areas of disagreement will suffice. He disagreed with Professor Lockshin's opinion that:
(1) the terms "brand" and "mark" can be viewed as interchangeable;
(2) that any and all uses of the word "Mitolo", regardless of adjacent text, visual context, font or graphic design treatment, would be confusing to buyers. Dr Downes considered that the comparison was not made against a single node such as the word "Mitolo", but rather against the overall concept represented by a linked network of nodes that together identify a brand;
(3) Professor Lockshin's emphasis on the use of the single word on a label, "rather than the overall visual impression and visual cues conveyed by the label, in terms of effects on consumer brand and recognition and identification";
(4) that there is no special class of consumers that buy the applicants' wines compared to a different group that buy the respondents' wines; and
(5) that the word "Mitolo" is most likely the identifying cue when consumers are buying either wine. Dr Downes considered that this was not supported by the material in his report, according to Dr Downes. Dr Downes considered that it is the visual impression created by the bottle and its label as a whole that is likely to be the first thing consumers process and compare to impressions and brand concepts stored in their memories and is likely to be of much greater importance in brand recognition than the brand name considered alone.
271 Dr Downes does not consider any of Vito Mitolo & Son's labels to be "substantially or significantly identical with, or deceptively or significantly deceptively similar to the Applicant[s'] mark". He does not consider that any relevant segment of the public is likely to confuse the applicants on the one hand, and the respondents or any business operated by them on the other. Dr Downes seems to express the opinion that the applicants' wines are addressed to a different market than the respondents. Furthermore, he is critical of Professor Lockshin's reliance on anecdotal evidence which he considers "uncontrolled, subjective, have been reported through or by parties with an obvious interest in the matter, and/or lack a range of other detail (such as the context in which the apparent confusion took place)". Having made those points, Dr Downes expresses the following opinion:
Most importantly, there is no basis on which these anecdotal reports of apparent confusion can be used to quantify the incidence of confusion across the market as a whole; that is, there are no data regarding the number of proportion of consumers who were not confused.
272 Dr Downes provides some information on the Australian wine market. He states that four large companies together account for almost 40% of Australian wine sales by revenue (domestic and international sales). Between them, these four companies own numerous leading and well-known wine brands. Dr Downes refers to Professor Lockshin's statement that about 240,000 bottles of the applicants' wines are sold annually in Australia and states that, assuming the volume of each bottle to be the standard 750 ml, that this represents total sales of 180,000 litres. Dr Downes states that he understands that the sales of the V. Mitolo and Son wines are, by comparison, lower than those of the applicants' wines. He states that according to Wine Australia's latest report on Australian wine production and sales, 468 million litres of Australian wine was sold in the Australian domestic market in 2015-2016. Thus, Mitolo Wines and V. Mitolo and Son can each be assumed to have less than 0.04% share of the Australian domestic market by sales volume. Dr Downes expresses the opinion, based on his experience, that when market shares are this small, it is impossible to determine the likelihood of any sales volume-related effect on comparative levels of consumer brand awareness.
273 Dr Downes states that he disagrees with Professor Lockshin's conclusion that there is confusion and with his opinion that the only way to avoid or remedy confusion is to remove the word "Mitolo". He expresses the following opinion:
In my opinion, the overall visual impression conveyed to consumers by the products of the Respondents, and the intended positioning of the Respondent's brands are likely to be very different from the impressions conveyed by the Applicant's products, making the removal of the word "Mitolo" unnecessary. This is particularly the case in relation to a product such as OZTALIA, where use of the word "Mitolo" is in the context of the wording "Produced by Vito Mitolo and Son" presented in a small font and clearly used to describe the producers of the wine and not as an important brand identity element.
274 It emerged in cross-examination of Dr Downes that he would not draw any conclusions about the likelihood of confusion in general in the market place until he saw some mathematical or scientific justification on a statistical basis. He referred to the evidence of actual confusion in the following answer:
I would accept that they are observations of interest, and that they lead to the generation of a hypothesis. In order to test the extent to which that occurs and the conditions under which it might occur, that's where a scientifically designed survey or experimental study, in my mind, in my opinion, would be warranted.
275 One point to note in Dr Downes' evidence in the context of trade mark infringement is that he has focused on how the applicants have used the Mitolo mark. The focus for trade mark infringement is, as I will explain, largely the mark itself and the ways in which it may be used within the class of goods or services concerned.
276 It seems to me that the differences between Professor Lockshin and Dr Downes come down to the following.
277 First, the two experts differ as to the significance, in terms of the likelihood of confusion, of the use of "Mitolo" in each mark. The difference includes differences as to the significance of the letter "V" in the case of the respondents' mark and other brand indicia as between the applicants' labels and those of the respondents.
278 Secondly, the two experts differ as to the significance of the cases of actual confusion, with Professor Lockshin placing significant weight on the cases, and Dr Downes none.
279 Thirdly, and related to the second matter, the experts differ as to the significance of the fact that a logical and coherent survey has not been carried out in this case. By a logical and coherent survey, I mean one that is properly constructed so as to yield meaningful results.
280 With respect to the first point of difference between the experts, clearly the mark Mitolo is different from the mark V. Mitolo and (in the ribbon device) Son. However, I am unable to see the significance Dr Downes attributes to the letter "V" followed by a full stop. I cannot see that in the mark, V. Mitolo and Son, the letter "V" followed by a full stop performs a similarly significant function to the examples he gave, such as G-Star in the case of fashion jeans, or J.Crew in clothing brands, or Xbox in gaming consoles, or iPhone and iPad in consumer brands. Insofar as Dr Downes is drawing an analogy, I do not consider it to be apt. In the case of V. Mitolo and Son, it is not an initial letter followed by a descriptive word, such as Star, Crew, box, phone or pad. In the case of V. Mitolo and Son, the initial letter is plainly the first letter of a christian name and Mitolo is plainly a surname. It is true, as Dr Downes said, that in wines listed alphabetically, wines for V. Mitolo and Son will appear in a different section of a wine list and that the letter "V" is a graphic element in the respondents' mark (Dr Downes referred to it as a significant graphic element). However, we are not just talking about comparisons made by reference to wine lists organised alphabetically and, in any event, the difference between Mitolo and V. Mitolo and Son is much more equivocal than differences between features of logos or devices in terms of whether such differences indicate, or may indicate, different sources for the wines. It is quite possible that V. Mitolo and Son could also trade under the name, Mitolo, and/or have an association with Mitolo. The other difficulty with Dr Downes' approach is that, as I read paragraphs 28 to 36 of his written report, he compares not only the marks - Mitolo and V. Mitolo and Son - but how they are used in terms of the colours and other features of how they are used. At least as far as trade mark infringement is concerned, this is not the correct approach. The way in which the trade mark owner is presently using the mark is not relevant and nor is it relevant that the goods are different in terms of price or category of purchaser if the ambit of registration encompasses all those goods. I refer to my discussion of the relevant principles set out below.
281 With respect to the second point of difference, I have explained that I consider the cases of actual confusion to be significant. Dr Downes criticised reliance on the cases of actual confusion. He said that they were "uncontrolled". It is not clear to me whether he means by this that there was no control group or that they were not controlled, in the sense of conducted, by an independent group as one would have in the conduct of a survey. If he means the absence of a control group, it is not clear to me what characteristics such a group would have. Whichever meaning is correct, it is true that in either sense, the cases of actual confusion were uncontrolled. Dr Downes said that the cases of actual confusion were "subjective". Any expression of confusion is subjective, but if he means subjective in the sense of not being subject to such objectivity as a properly constructed survey can involve, then Dr Downes' point is a valid one. Dr Downes criticised the cases of actual confusion as having been reported by or through parties with an "obvious" interest in this matter. That is true in some of the cases of actual confusion, but not others. I have had the benefit of evidence of the cases of actual confusion where there is an interest and I have considered whether that affects the weight which should be given to the evidence. As I have said, I do not think it affects the cogency of the evidence. Dr Downes criticised the lack of a range of other data, such as context, in the evidence of cases of actual confusion. That is true and is a matter I have taken into account. Finally, Dr Downes criticised the evidence on the basis that there is no material which enables one to compare the number of cases where confusion occurred with cases where it did not. That is true to a point and leads to the third point of difference, that is to say, the significance of the lack of the results of a properly constructed survey. Plainly, Dr Downes considers that, although the cases of actual confusion leads to the generation of a hypothesis, a scientifically designed survey or experimental study is warranted. The applicants pointed out that Dr Downes did not carry out a survey. There is nothing in this point. The onus is on the applicants to prove their case. It may be accepted that a properly constructed survey is likely to provide more cogent evidence of the presence or absence of confusion. However, as I have explained, in my opinion, the cases of actual confusion provide more than a hypothesis in the sense of a belief that something may be happening or of a proposition that requires further investigation.
282 I reject the key aspects of Dr Downes' opinion. I prefer the substance of the opinions of Professor Lockshin.