(vii) Whether the services were the same, or of the same kind, as the Optum designated services
65 The next question is whether "the IBS/NCS Story" presentation shows use of the word OPTUS as a trade mark with respect to services that are the same, or of the same kind, as any of the designated services in Optum's trade mark applications. Singtel's primary case was that the services are the same because the presentation promoted a broad range of services described by reference to a range of activities, including "Change Management", "Technology Consulting", "Application Development", "Systems", "Network", and "Infrastructure" integration and "Application", "Facilities" and "Business Process" management and with reference to more particular types of offerings, especially in relation to: electronic health records and insurance and claims as shown by the MediNet system, comprising the "key applications" of the "National Patient Master Index" and the "Central Claim Processing System"; integrated hospital and clinical information systems, such as "Outpatient Administrative System"; and information management covering "Electronic Medical Record Exchange" (the sharing of electronic medical records across public hospitals and clinics, as part of a "controlled exchange of essential patient medical information") as well as the "Public Health Information System" project (the establishment of a "public health information network … comprising an information portal, operation system, document management, data warehouse and data mining"). It also highlighted Singtel's then current health prospects for WA Health (an e learning trial), the HIC (including an "authentication solution for Medicare customers") and a "National Disease Surveillance register" for the Commonwealth Department of Health.
66 It was submitted that the document is substantial evidence of the services offered by Singtel under, and by reference to, the OPTUS mark in respect of a broad range of services related to the healthcare industry.
67 I am satisfied that the presentation evidences use of the OPTUS word mark as a trade mark in relation to services relevant to the healthcare sector. However, this is not a case, in my view, where it can be said just on the description of the services that the services are the true equivalent of any of Optum's designated services. I think there is insufficient detail provided in the presentation about the nature and content of the services on offer to determine whether there is little or no difference between the character of those services which Singtel was promoting and the designated services in Optum's trade mark applications. In my view, this is a case such as Accor where the types of services may well overlap but "the degree, boundaries and measure of the overlap are unclear" based just on the content of the presentation because the relevant services are too generally and broadly described in that document.
68 In Anchorage the Full Court stated at [78] that the Court is entitled to look beyond the document in which prior use is claimed for the purposes of determining what services were being offered. In this regard I do not think that Mr Donker's evidence about the non-telecommunications services which NCS had been offering in the healthcare sector in South East Asia advances the matter any further because those descriptions are also too general and broad. But before reaching a concluded view, it is relevant to note that the evidence was that the presentation was a general presentation made to NSW Health during the tender processes and prior use of the OPTUS word mark is also claimed in connection with Singtel's response to the NSW Health Tender IT-188 and the NSW Health tender IT-190. Accordingly, before any concluded view is reached on whether the services identified in the IBS/NCS Story presentation are the same, or of the same kind as, the designated services, it is necessary to consider Singtel's response to the NSW Health Tender IT-188 and the NSW Health tender IT-190.
NSW Health Tender IT-188
69 Mr Donker's evidence was that in July 2005, Singtel submitted a response to NSW Health's request for tender for the establishment of data centre and application development and support for methodologies and tools for the development and transfer into production of new systems and services. Singtel tendered for four distinct product and service bundles, which Mr Donker described as follows:
(a) Project Management Office: this bundle included provision of project management methodology, management advice to support Health NSW in managing and developing their staff; ICT and systems integration advice and project delivery services;
(b) Data Centres: Singtel tendered to advise New South Health on how to establish and operate data centres and to assume responsibility for rationalising and then operating data centres;
(c) Desktop, communications and service desk: this bundle included integrated service desk services, management and support for desktop IT (including automation, remote support and web portal services); and
(d) Application, development and support: Singtel tendered to provide NSW Health with application development and support services. Mr Donker stated that these were not traditional telecommunication services. Under this bid, Singtel offered to provide NSW Health with an IT study to NSW Health to evaluate the then current application environment with the aim of advising on approaches to be undertaken for rationalising legacy systems and subsequent development of future applications; and application development services and ongoing support.
70 Mr Donker was involved in the preparation of the tender documents and was part of the joint Optus and NCS team that prepared and presented to NSW Health. Annexed to his affidavit are copies of drafts of Singtel's Expressions of Interest in respect of these tenders. Also exhibited is a copy of a briefing note he prepared for Singtel in relation to its internal discussion regarding the NSW Health tender. Singtel has relied on those documents to show prior use of the word OPTUS as a trade mark.
71 Optum submitted that the evidence did not establish the services in respect of which trade mark use was claimed because the documents in evidence were only drafts, and Mr Donker agreed in cross-examination that the final versions would not have been in substantially the same form as many parts of the draft documents were incomplete. He also agreed that the content of the final versions of those documents may well have been different to the content of the draft documents, and agreed that he could not recall whether he saw a final draft of each document. Whilst, however, the documents were obviously only in draft form and incomplete, they were expressions of interest in relation to the provision of identified services for NSW Health. Furthermore, Mr Donker explained the nature of those services in his affidavit and he was not challenged on that evidence nor was it put to him that his description of the services in respect of which the expressions of interest were submitted was wrong. Nor was he challenged on his evidence that the four expressions of interest were actually submitted. I therefore accept that the evidence sufficiently established that Singtel was promoting the services in the healthcare sector of the kind described by Mr Donker.
72 Next, Optum submitted that the documents were purely preparatory or preliminary ahead of a tender. It was put that Mr Donker accepted in cross-examination that the services to be requested for tender had not been finally identified at the time that the expressions of interest were submitted and there was no evidence that Singtel in fact participated in the subsequent tender. The fact of submitting expressions of interest, however, indicates that Singtel did intend to offer services of the nature in respect of which it submitted expressions of interest.
73 Next, Optum submitted that as there was no evidence as to the final form of the documents, the evidence did not establish what, if any, trade mark was used. That submission is not accepted either. Although none of the draft documents contained the OPTUS mark, in each document one of the matters for completion in the final draft was to "place company logo graphics in header if available". The evidence of Evdoxia Karakasidis, who worked at Singtel between 2008 and 2015 in various positions in marketing, was that the corporate logo at the relevant time was 'yes' OPTUS. It may reasonably be inferred that the corporate logo was in the final form of each expression of interest, including the expression of interest for Desktop, Communications and Service Desk consistently with the other documents (which in the draft form as part of the marking up had a line through "place company logo graphics in header if available"). The word "Optus" also appears throughout in a manner that indicates that the word was not merely being used as a business name but was also being used as a badge of origin. Moreover, as earlier concluded, use of 'yes' OPTUS constituted use of the registered OPTUS mark.
74 The question then for determination is whether the services as described by Mr Donker for which Singtel submitted expressions of interest are true equivalents of the designated services in Optum's trade mark applications. Once again, such services may well have overlaps with Optum's services but, in my view, it is not evident just as a matter of language there are services that are true equivalents. Furthermore, the descriptions given by Mr Donker of the services offered by Singtel were also too broad and generalised to identify the precise nature and character of those services and the evidence does not enable a finding to be made that such services are the true equivalent of any of Optum's designated services listed in Schedule B.
NSW Health Tender IT-190
75 Mr Donker gave evidence that in 2005 NSW Health also requested expressions of interest for the supply of an EMR Solution (Electronic Medical Record - Point of Care Clinical System). This was a solution to support the clinical care process by enabling health professionals (doctors, nurses, allied health professionals etc.) to review and access patient health records, dispense medications, generate and monitor the progress of a clinical pathway. Mr Donker's evidence was that Singtel, together with iSoft PLC ("iSoft"), tendered to provide the EMR Solution including: (1) iSoft supplying the EMR software and product installation, customisation, training and ongoing software support services; (2) Singtel's Integrated Business Solutions unit providing infrastructure setup, hardware provision, system software, hosting, service desk, onsite maintenance, end-to-end management, reporting and billing services; and (3) Singtel via NCS providing project management, implementation studies (with iSoft), enterprise architecture, development and customisation, integration to other hospital systems, migration and implementation services.
76 Mr Donker deposed to a presentation in June 2005 to NSW Health to outline its core competencies and to promote its experience beyond telecommunications and to market how its consumer, mobile, IT integration, operations and partnering experience could assist the NSW Health agenda. Mr Donker's evidence was that in this presentation, Singtel pitched several new innovative service capabilities that could be relevant to NSW Health including: (1) an integrated hospital/clinic information system, including the management of patient records, appointment scheduling, financial management and patient billing and cash management; (2) e-services, including e-appointment, e-billing, e-pharmacy, e-learning, e-CRM and e-licensing; (3) a professional support system, including order and entry results reporting, an electronic medical record exchange, population care systems and a kidney transplant management system; (4) a health information management system, including a public health information reference model and a public health data dictionary; (5) a national/public health system, including a national patient master index, central claims processing, national disease registries and a student health management system; and (6) a licensing and regulatory system, including pharmaceutical and medical device regulatory information systems, quality enhancement and surveillance system and an adverse drug reaction registry.
77 Mr Donker exhibited a presentation that Singtel made to NSW Health at the time, being the presentation at Court Book 5, tab 202 titled "NSW and Singtel Optus". The presentation showed the 'yes' OPTUS mark and identified the "solutions for the future" covering a range of different services applicable to the healthcare sector including "Integrated Hospital/Clinical Information System", "Health Information Management", "Professional Support System", "E-Services", National/Public Health Systems" and "Licencing & Regulatory Systems".
78 Optum argued that there was no trade mark use because Mr Donker's evidence about Singtel pitching to NSW Health indicated that Singtel was merely exploring whether there was a market for the services and there was no evidence that the services were in fact provided. I reject that submission. Once again, the content of the presentation shows that the proposal was more than just investigative, but was an offer to supply such services to NSW Health.
79 Optum again argued that use of 'yes' OPTUS was not use of the OPTUS mark and for the reasons earlier given I have rejected that submission.
80 However, I do not accept that it is open to conclude as a matter of language that there is no distinction between those services and designated services in Optum's trade mark applications. Nor is it open to conclude on the face of the available evidence that the services promoted in that document (as elaborated on by Mr Donker) are the true equivalent of designated services in Optum's trade mark applications for the same reason that the descriptions are too broad and general to identify the nature and character of the actual services being promoted.
81 Accordingly, I also conclude that the evidence identifying the services in respect of which Singtel submitted expressions of interest to NSW Health does not advance the question as to whether any of the services listed in the "IBS/NCS Story" are true equivalents of the designated services in Optum's trade mark applications.
Australian Dental Association (NSW)
82 Mr Donker gave evidence that in or around February 2005, in his capacity as a specialist consultant to Singtel, he worked with Adam Hatcher, an account manager at Optus Business, and Vivien Rowland, Singtel's then National Sales Development Manager Health, on preparing a partnership proposal which was put to the New South Wales branch of the Australian Dental Association on behalf of Singtel. The proposal included Singtel's traditional broadband, IT security and telecommunications services to be supplied to the members of the Australian Dental Association and also offered access to a specialist portal and web services such as online office for dentists which would be developed for the Australian Dental Association (NSW). Mr Donker deposed that additionally Singtel would deliver e-learning applications developed in partnership with the Australian Dental Association and EFTPOS facilities and this also involved the provision of hardware and software.
83 The proposal did not proceed but Mr Donker recalled attending at least one presentation given to the Australian Dental Association by Singtel in or around 2005 in respect of the proposal. In evidence was a file copy of a letter sent to the Australian Dental Association in February 2005. Although the copy is not on letterhead, Mr Donker stated that when it was sent, it was sent on Optus branded letterhead. Also in evidence was a copy of the proposal that Singtel put to the Australian Dental Association for preferred supplier of information technology and technology service. The 'yes' OPTUS mark appears on each page.
84 The letter stated that:
The Optus Business solution includes:
• A "Standard IT&T Package" designed to meet dental practice and dentist needs, incorporating Broadband, IT Security and Telecommunications;
• special access to hardware, software and related products;
• Extension of these benefits to Practice employees where relevant;
These solutions for your members will be complemented by our wider partnership to review and expand the ADA(NSW) member services and offerings through:
• e-Learning technologies to enable ADA(NSW) to expand and position these services with its members;
• effective use of existing and emerging technologies and services, such as SMS, mobile services, specialist portal and web services, etc.
85 The executive summary in the proposal similarly promoted such services. The Optus Business Solution was identified as a package that offered fast internet access through Optus Business Broadband, IT Security and Services, Helpdesk, Remote Management, landline services and mobile services and additional hardware and software services to dentists. The key benefits of the "Solution" were said to include the "ability to implement and deliver e-learning technologies via fast internet access" and the key advantages were said to include "[e]nables on-line education and training" and "enables access to electronic academic library".
86 Optum raised the same arguments that:
(a) there was no trade mark use because the documents did not evidence the provision or offering of any services but rather the use was only in the context of purely preparatory steps to investigate whether to offer such services; and
(b) if there was any trade mark use, the mark used was 'yes' OPTUS.
87 Neither argument is accepted. First, it is apparent from both the covering letter and the detailed proposal that Singtel was offering to provide the services that it was promoting. Secondly, the reasons for rejecting the argument in relation to the IBS/NCS Story slide presentation that use of the stylised 'yes' OPTUS mark was not use of the OPTUS word mark equally apply here.
88 Optum also argued that if there was any trade mark use, that use was properly characterised as telecommunications services, referring to the following (italicised) statement in the executive summary in the proposal:
The proposal represents the first step in a partnership between Optus and ADA(NSW).
It provides a range of core telecommunications and technological services for members and a platform for the shared development of future services which will help cement the longer term value the ADA(NSW) represents to its members.
(italicised to highlight the relevant part relied on)
89 I agree. The descriptions in both the letter and the proposal about the services offered were about the provision of telecommunications and technological services. Accordingly, whilst I accept trade mark use of the word OPTUS in relation to such services, I do not accept that such services are the true equivalents of any of the designated services in Optum's trade mark applications.
iSoft
90 Another project of Singtel in the healthcare sector was with iSoft. iSoft specialised in hospital systems (patient administration, clinical, pharmacy, emergency theatre, laboratory services), practice systems for primary care, and medical record technology. Mr Donker deposed that between 2005 to at least 2007, Optus Networks Pty Ltd ("Optus Networks"), a wholly-owned subsidiary of Singtel, partnered with iSoft to address business opportunities in the healthcare sector. Singtel's role in this project with iSoft was as an application software provider in order to deliver iSoft's healthcare applications to public and private health sector clients. Mr Donker explained in his affidavit that the Optus and iSoft partnership was to work together in relation to the development and provision of: health applications, software including hospital systems, community, public health, practice management and diagnostic systems; services oriented architecture for solutions from consumer to health service provider settings; and specialist business process, integration, installation, operation and related services for health systems. Mr Donker stated that Singtel's partnership with iSoft was predominantly exploratory in nature to assess the viability of the parties offering complete (bundled) solutions for the healthcare sector. As part of this exercise, Singtel and iSoft jointly approached and made presentations to enterprise-level clients in Australian and New Zealand healthcare, including most State Government health departments, private health operators and the Australian Government. Mr Donker exhibited a copy of the agenda from the Singtel and iSoft Health Teaming Project meeting which took place on 16 June 2005.
91 Mr Donker deposed that in July 2005, as part of the partnership with iSoft, Singtel together with Optus Networks presented a proposed hosted delivery model for the provision of a patient administration system ("PAS") solution to Healthscope, a private hospital group. Mr Donker's evidence was that he was a member of the joint Singtel and iSoft team and was involved in presenting this project with a representative from iSoft to Healthscope representatives in Melbourne. Mr Donker recalled that they presented a Microsoft PowerPoint presentation at this meeting, although he no longer has a copy of the document. His evidence was that the presentation was co-branded with the OPTUS trade mark and the iSoft trade mark. He was not challenged on that evidence.
92 Mr Donker stated that "the PAS software was to be provided as a service (software as a service) along with application management, maintenance and implementation services". Singtel's involvement in this project was through Singtel's integrated business solutions unit which was responsible for the overall management of the development and implementation of the PAS solution for Healthscope. This included infrastructure provision, operating system software, security, hosting and infrastructure management, operating system management, telecommunications links, storage, service desk (telecommunications and infrastructure services), billing and reporting; and, through NCS, services were to be supplied to integrate the hosted PAS solution to Healthscope's existing systems.
93 Exhibited to his affidavit was a copy of the joint Optus and iSoft proposal to Healthscope in draft form which showed the stylised 'yes' OPTUS mark on each page. Mr Donker agreed in cross-examination that he was not able to say whether the final version was in substantially the same form.
94 Optum relied on Mr Donker's evidence that Singtel's partnership with iSoft was predominantly exploratory in nature to assess the viability of the parties offering complete (bundled) solutions for the healthcare sector to argue that the presentation was a purely preparatory act or activity and there was not trade mark use of the OPTUS word mark. However, the proposal notes that the PAS "solution" detailed in the proposal which was being marketed to Healthcare was one that Singtel and iSoft had developed for Healthcare, indicating that the "solution" was not just a concept at the planning stage but one that Singtel and iSoft was offering or intended to offer Healthcare, if it was interested.
95 Next, Optum argued that Mr Donker's evidence that the presentation was co-branded with the OPTUS trade mark did not constitute evidence of use of the mark as a trade mark, particularly given the range of OPTUS trade marks, including the stylised 'yes' OPTUS mark, in use. The presentation does use 'yes' OPTUS which, as I have earlier concluded, constituted use of the registered OPTUS mark. It is also reasonable to infer from the many references to "Optus" in the document that the word was not just used as a business name but also as a badge of origin.
96 Singtel also put the same argument that it is readily to be inferred that Mr Donker and the other people present from Singtel said "Optus" during the presentation in connection with the services there described. It is open to draw that inference as the presentation itself contains many references to "Optus". However, if I am wrong that OPTUS was used as a trade mark in the slide presentation, the drawing of such an inference would not advance Singtel's claim that OPTUS was used as a trade mark just because the word "Optus" was used in the oral presentation. It would be equally open to conclude in that circumstance that any reference to "Optus" in the oral presentation was merely use of a business name.
97 Finally, Optum submitted that if there was any trade mark use, that use was properly characterised as use in relation to a hosted delivery model for the provision of a patient administration system. I agree. It is not apparent on the face of the material that this "service" is the equivalent of any of the designated services specified in Optum's trade mark applications.
Healthe
98 Another project was with Healthe International Pte Limited ("Healthe"). In 2005, Mr Donker was engaged as a consultant to Healthe (whilst also being a consultant at Singtel) which, at the time, owned approximately 12 private specialist hospitals in Australia. Healthe also focused on patient health management and was involved in providing health related online portals during the 2004 Summer Olympic Games. Mr Donker introduced Healthe to Singtel to work on a collaboration to offer similar online services to enable patients to look after their own health.
99 Mr Donker's evidence was that he attended a presentation made by Healthe to Singtel in November 2005 "to explore joint implementation and delivery of a personalised health management system as an online portal accessible via a mobile phone". He stated that it was proposed that this portal would have included electronic medical records, personal health records, health expenditure calculators, loyalty and reward programs and health risk assessments. Mr Donker stated that whilst this project did not proceed, he presented Singtel's and Healthe's joint offering to the Queensland Government officials in the health sector on several occasions in 2005 and whilst he no longer had copies of those presentations he recalled at the meetings they used Microsoft PowerPoint presentations co-branded with the Optus trade mark and the Healthe trade mark. He was not challenged on that evidence.
100 In evidence was the presentation which used 'yes' OPTUS on the front slide.
101 Optum argued that there was no trade mark use of the OPTUS word mark because the presentation was purely preparatory "to explore" entering into a joint project. That contention is not supported by Mr Donker's evidence which sufficiently indicates that Singtel and Healthe intended, and were offering, to provide the services that they were promoting.
102 Optum also argued that Mr Donker's evidence that the presentation was co-branded with the OPTUS trade mark did not constitute evidence of use of the mark as a trade mark, particularly given the range of OPTUS trade marks, including the stylised 'yes' OPTUS mark, in use. The presentation does use 'yes' OPTUS though, which I have earlier concluded constitutes use of the registered OPTUS mark.
103 However, whilst it may be open to say from the descriptions that there is a degree of overlap with Optum's designated services, I do not accept that it is open to conclude on the face of the available evidence that the services promoted in that document (as elaborated on by Mr Donker) are the true equivalent of any of the designated services in Optum's trade mark applications. Once again the descriptions are too broad and general to identify the nature and character of the actual services being promoted.
Sonic Healthcare
104 As Singtel did not identify that it relied on this part of Mr Donker's affidavit in support of its s 58 ground, I do not deal with it.
Electronic Medicare Claiming and Payment Services
105 As Singtel's response to Optum's submissions on evidence in relation to the s 58 ground stated that Singtel relied on the evidence of Mr Hudson, not Mr Donker, in relation to this item, I do not deal with it here.
Optus HealthVault
106 As Singtel did not identify that it relied on this part of Mr Donker's affidavit in support of its s 58 ground, I do not deal with it.
The Royal Flying Doctor Service of Australia
107 As Singtel did not identify that it relied on this part of Mr Donker's affidavit in support of its s 58 ground, I do not deal with it.
i-Med
108 As Singtel did not identify that it relied on this part of Mr Donker's affidavit in support of its s 58 ground, I do not deal with it.
Optus Healthpoint
109 Mr Hudson's evidence was that he was employed by Singtel and its related entities for approximately 23 years from 1993. In 1996, he held the position of Senior Account Manager - Federal Government, with responsibility for Singtel's business relationship with the Health Insurance Commission (now known as Medicare). He identified a business opportunity for Singtel to develop and supply an e-health business solution for the Health Insurance Commission to streamline the processing of Medicare claims and payments. The system was known as "Optus HealthPoint" and was the first e-solution for billing in the health industry. Mr Hudson deposed that Optus HealthPoint was an EFTPOS terminal based non-internet system which used an EFTPOS terminal and modem with a laser printer on the Optus X.400 network to transfer bulk-billing claims for fees payable under Medicare and Veterans' Affairs from doctors to the Health Insurance Commission.
110 Singtel launched Optus HealthPoint in August 1997. Mr Hudson's evidence was that Optus HealthPoint was marketed to health professionals "under and by reference to the Optus and OptusHealth Point brands" and he recalled that the Optus HealthPoint terminals which were placed in optometrists' and doctors' surgeries "featured the OPTUS mark". Exhibited to his affidavit were media reports at the time about the launch of Optus HealthPoint and photographs of these terminals, which showed use of what appears to be the following mark:
("the OPTUS communications logo")
111 The OPTUS communications logo was the then corporate logo for Singtel.
112 Mr Hudson also gave evidence that by around July 1999 Singtel had installed over approximately 2,000 Optus HealthPoint systems in doctors' surgeries around Australia and by the year 2000 Optus HealthPoint facilitated both electronic lodgement and processing of health insurance items including claims for medical bills and immunisation reporting (through the Australia Childhood Immunisation Registry), receipt of printing of pathology and radiology reports. Singtel also extended Optus HealthPoint to permit health fund members to lodge on-the-spot claims when they visited a dentist or an optometrist and to use their own credit card to pay the gap cost to the provider.
113 Optum made the following points about this evidence. First, it was submitted, the branding under Optus HealthPoint was not use of the OPTUS word mark. Secondly, it submitted, his evidence that Optus HealthPoint was marketed to health professionals under "the Optus brand" did not establish the use of the OPTUS word mark as a trade mark as he did not say that it was marketed under the OPTUS word mark. Likewise his evidence that the Optus HealthPoint terminals "featured the OPTUS mark" did not establish the use of the OPTUS word mark as a trade mark as he did not say that it was the OPTUS word mark that was used and, it was argued, it was more than likely on the evidence that the mark that Mr Hudson was referring to was the Optus Communications logo which was not the same as OPTUS word mark. Thirdly, having regard to Mr Hudson's evidence about Optus HealthPoint as an EFTPOS terminal based non-internet system, the trade mark use of the word mark (if found) was properly characterised as use in relation to a terminal-based system for the transfer of bulk-billing claims and not a use in relation to a wider class or category of goods or services.
114 I do not accept that Mr Hudson's evidence has established use of the OPTUS word mark as a trade mark. First, whilst Mr Hudson was not cross-examined, his evidence that Optus HealthPoint was marketed to health professionals under "the OPTUS brand" was no more than a bare assertion without providing any factual foundation other than his recall that the terminals featured the OPTUS mark. Secondly, the OPTUS mark featured on the terminals appears to be the OPTUS Communications logo. Thirdly, the evidence before me does not enable a finding to be made that the OPTUS Communications logo was used as a badge of origin, not just as a means for identifying Singtel by its corporate logo.
115 If I am wrong, and there was trade mark use of the word "OPTUS" on the terminals or in the marketing of Optus HealthPoint, I agree with Optum that the evidence did not establish a wider category of use than use in relation to a terminal based system for the transfer of bulk-billing claims. Singtel argued that Optum's characterisation overlooked Mr Hudson's evidence in which he stated that the e-business solution system was "developed" by Singtel with input from the Australian Medical Association, the Health Insurance Commission and a Sydney-based software developer. However, the evidence did not go so far as to establish trade mark use of the OPTUS word mark in connection with the development of that system. Whilst Mr Hudson gave evidence about Singtel's development of the system, his evidence about use was confined to the promotion and provision of the Optus HealthPoint system. If the finding was made of the (limited) trade mark use in relation to a terminal-based system for the transfer of bulk-billing claims, it is not readily apparent from the description alone that such use was in connection with services that are the true equivalent of the designated services in Optum's trade mark applications. Nor did the evidence sufficiently identify the content of the services to enable such a conclusion to be formed.
inCITE
116 Evdoxia Karakasidis worked at Singtel between 2008 and 2015 in various positions in marketing. In this context, Singtel relied on evidence she gave about a contract that Singtel was awarded in 2002 by the Construction Industry Trading Exchange to develop and manage an online construction, industry trading exchange which enabled clients, owners, consultants, contractors, subcontractors and suppliers in the Australia construction industry to manage project delivery electronically, including document management, tendering and purchasing of construction services and products ("inCITE"). inCITE was part of the Singtel "related experience" referred to in the IT-188 expression of interest tender to NSW Health for the Project Management Office which included the provision of "ICT and Systems Integration Advice" which involved developing "innovative, effective IT and communications engineering solutions across all platforms in the Health and other industries to achieve maximum results for businesses". Ms Karakasidis's evidence, in conjunction with Mr Donker's evidence relating to the expression of interest submitted regarding the proposal for project management services, and with Mr Hudson's evidence, was said to establish use of the OPTUS trade mark in relation to services which are the same, or of the same kind as the services the subject of Optum's trade mark registrations in relation to items (7), (8), (22), (24), (26), (33), (41) and (42). The difficulty with this contention is that Ms Karakasidis's evidence about the contract Singtel was awarded with the Construction Industry Trading Exchange does not sufficiently identify the nature and scope of the services provided. It is not obvious as a matter of language, or from the available description, that the services are the same, thus requiring more detailed evidence about the nature and scope of such services to enable a comparison to be undertaken and a conclusion reached as to whether they are, in fact, true equivalents.