England and Wales High Court (Patents Court) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/10/2013

Mr Justice Norris :

1. This is an appeal from the decision dated the 27 February 2013 of Ann Corbett ("the Hearing Officer") on behalf of the Registrar of Trade Marks. The Hearing Officer rejected the opposition of the Appellant ("Lonsdale") to the registration of the following mark ("the Respondent's Mark"):-

2. Both the Respondent and Lonsdale were engaged in the sale of sports clothing. Lonsdale had registered a number of marks, amongst them the following:-

3. Lonsdale opposed registration of the Respondent's Mark on two principal grounds. First, because there was a likelihood of confusion on the part of the public since the Respondent's Mark was similar to one or more of Lonsdale's registered marks and was to be registered for goods identical with those for which Lonsdale's marks were registered (see section 5(2)(b) TMA 1994). Second, because the Respondent's Mark was similar to one or more of Lonsdale's registered marks (each of which had a reputation in the United Kingdom) and the use of the Respondent's Mark took unfair advantage of (or was detrimental to) the distinctive character or repute of Lonsdale's marks: (see section 5(3) TMA 1994). Each of these grounds of opposition failed.
4. So far as the case based on section 5(2)(b) TMA 1994 was concerned, the Hearing Officer reached the conclusion that Lonsdale's opposition should be rejected by the following route:

a) The Hearing Officer selected two marks (those ending "554" and "127") which in her view represented Lonsdale's strongest case. Mark "554" was the elongated "L": Mark "127" was the word "Lonsdale" incorporating the elongated "L", employing chiselled block capitals and laid out in cinemascope style.

b) She noted that the evidence established that substantial figures had been achieved for sponsorship deals, sales in the EU (through Sports Direct sales), worldwide sales and EU royalty receipts: but she observed that those substantial figures "had not been broken down in terms of the proportion which might have accrued to the various marks used or to the goods to which those sales relate", nor had the proportion attributable to the UK been identified; and she concluded "so they are not of any great assistance to me in reaching my decision".

c) She was nonetheless satisfied that mark "127" had been used for the period relevant for the purposes of section 6A TMA 1994 and could therefore be relied upon by Lonsdale.

d) She concluded that whilst there were examples of the word "Lonsdale" incorporating the elongated "L" in a different colour from the rest of the lettering "this is not enough to persuade me that it is the use of the earlier mark ["554"] as and of itself". She therefore held that Lonsdale was not entitled to rely on mark "554".

e) She identified the average consumers as members of the public at large who purchased sportswear either as sports clothing or as casual or leisure clothing.

f) She characterised the mode of purchase as "a visual act made on the basis of self selection in either a retail environment, from a catalogue or online", the average consumer being "likely to pay at least a reasonable degree of attention to the selection of the goods at issue".

g) Correctly directing herself by reference to the usual authorities, she identified the distinctive features of mark 127 as the cinemascope style, the stylised font and the elongated "L", and identified the dominant element as being the word "Lonsdale" with the style of the letter "L" being a further distinctive element of the mark.

h) As to the Respondent's Mark she noted the cinemascope style, the elongated "L", the stylised font, the flag device and the word "England" (neither the flag nor the word "England" being distinctive in trademark terms), two other devices (the letters "NaS" and the tick device) which were distinctive but not dominant, and the word "London" which (whilst not distinctive in trademark terms) was the dominant element of the mark, with the elongated "L" adding to that distinctiveness.

i) She concluded that there was a modest degree of visual similarity between mark "127" and the Respondent's Mark and a low degree of aural similarity: and that the marks were conceptually distinct (the former being a surname and the latter a location).

j) She held that although she had been able to find that mark "127" had been used "I cannot be certain as to what degree that use will have enhanced the distinctiveness of the mark". But she continued to say that it was abundantly clear from the evidence that the word "Lonsdale" presented in the cinemascope style with the elongated "L" had a reputation and that this would have had a positive, though unquantified effect on the distinctive character of that Lonsdale mark as registered.

k) Having identified "the interdependency principle" (whereby a lesser degree of similarity between the respective trademarks may be offset by a greater degree of similarity between the respective goods), she held that, taking all relevant matters into account, there were significant visual, aural and conceptual differences in the respective marks which, given the nature of the purchasing process, outweighed any similarities. She therefore concluded that there was no likelihood of either direct or indirect confusion between the respective marks even where identical goods were involved.

5. So far as the case based on section 5(3) was concerned she reached her conclusion by the following route:-

a) Having found mark "127" to have a reputation, she reminded herself that it was nonetheless necessary to establish a link (i.e. a connection falling short of confusion) made by the relevant section of the public between mark "127" and the Respondent's Mark.

b) She directed herself by reference to the usual authorities that the existence of such a link must be assessed globally.

c) She held that, in order to be productive of advantage or detriment, "the link" established in the minds of the relevant members of the public had to have an effect on their economic behaviour, so that the reputation of mark "127" was transposed to the Respondent's Mark (with the result that marketing and selling of the Respondent's goods became easier).

d) On the evidence it was not exactly clear what advantage the Respondent would gain: and there was no evidence of any particular intention on his part nor was there any "added factor" that would support Lonsdale's claim.

e) So far as the possibility of dilution of Lonsdale's marks was concerned, the Hearing Officer saw no reason why the capacity of the registered Lonsdale marks to distinguish Lonsdale's goods would be diminished to any extent and certainly not such as to impact upon the economic behaviour of the relevant public.

6. The Grounds of Appeal submitted by Lonsdale were divided into 24 paragraphs. In order to address them I will group them under 5 heads:-

a) The Hearing Officer erred in selecting only marks "554" and "127" for consideration. She ought to have considered mark "935" (the word "Lonsdale" with the elongated "L", the stylised font and the cinemascope style over the word "London"). Had she done so the results of the visual, aural and conceptual comparison would have meant that she could not fairly have concluded that there was no likelihood of either direct or indirect confusion in relation to identical goods.

b) In selecting only two of Lonsdale's Marks for the purposes of comparison, the Hearing Officer failed to give proper consideration to the fact that these two marks were part of a "family" of marks which had been the subject of extensive use.

c) The Hearing Officer was wrong to exclude from consideration mark "554" on the grounds that it had not been used "as and of itself" because there is no essential requirement of independent use. The mark had been used (albeit with additional material which did not alter its distinctive character).

d) Although the Hearing Officer correctly directed herself on the relevant law, she misapplied it to the facts which she had found. The word "London" could not be the dominant element of the Respondent's Mark if it was not distinctive in a trademark sense, so that the only remaining distinctive elements were the elongated "L" and the cinemascope styling which were features that the Hearing Officer had found enhanced "as a result of extensive use over time" the otherwise averagely distinctive word "Lonsdale". Given that the purchasing act had been found to be a visual act, these visual similarities should have outweighed any aural or conceptual distinctions.

e) Although the Hearing Officer appeared to accept that there was a link created in the minds of a consumer between Lonsdale's Marks and the Respondent's Mark she then concluded that there would be no unfair advantage gained by the Respondent, but gave no grounds for that conclusion. The proper inference (from the absence of any evidence adduced by the Respondent as to why he had adopted the elongated "L" and the cinemascope style, neither of which was common in the trade) was that there was an intention to "free ride" on Lonsdale's family of marks (an inference supported by the adoption of the "NaS" device and the tick device that bore a resemblance to the Nike "swoosh").

7. My task is to consider those Grounds of Appeal in the context of a review (not a rehearing) and to decide whether I am satisfied that there is a distinct and material error of principle embodied in the conclusions of the Hearing Officer, or that those conclusions are clearly wrong.

Failure to consider mark "935"

8. The Hearing Officer selected two marks from the list of marks relied upon by Lonsdale in its opposition. The Respondent submits that where Lonsdale claims to have a "family" of marks (not constituting a series) this identification of the "best case" was the correct approach to adopt. Lonsdale complains that this was a unilateral decision for which no reasons have been given and upon which it was unable to address the Tribunal.
9. In my judgment Lonsdale's point is well taken. Lonsdale relied on a number of marks. It was open to the Hearing Officer to select from amongst them the "best case" marks for the purposes of the comparative exercise provided that she had allowed Lonsdale to address her upon the proposed selection and she then gave short reasons for her ultimate choice.
10. Lonsdale is right to say that mark "935" should have been amongst the "best cases" because it adds something to the Lonsdale name simpliciter. It adds the very word which is the dominant (if not distinctive in a trademark sense) feature of the Respondents Mark.
11. If the "935" mark had been considered the comparative exercise would inevitably have involved different factors. The Respondent submits that those additional factors would have reinforced the conclusions of the Hearing Officer since the word "London" under the stylised dominant feature in the "935" mark is nothing like the word "England" under the stylised dominant feature of the Respondent's Mark. On the other side, Lonsdale submits that a consideration of the "935" mark would have meant that there were further visual similarities (and a descriptive word under the stylised feature): further aural similarities ("London" appearing in both marks): and further conceptual similarities (since it was no longer possible to say that Lonsdale's mark consisted only of a surname without bringing to mind a geographical location).
12. I accept the submissions of Lonsdale. But they simply lead to the question: do those further similarities lead to the likelihood of confusion as to the origin of sportswear bearing the Respondent's Mark? Critical to the answer to that question is a consideration of the purchasing process. The Hearing Officer had correctly identified this as a visual act made on the basis of self selection from a shop display, catalogue or online site, involving a reasonable degree of attention to the selection (but with a consciousness of matters other than the marks in issue such as size, colour, material, price and suitability for purpose).
13. In that process the narrowing of aural and conceptual differences between Lonsdale marks and the Respondent's Mark is of no great significance: purchasing is principally a visual act looking at the mark as a whole in circumstances of less than perfect recollection.
14. The Hearing Officer concluded that "Lonsdale" is averagely distinctive, but the distinctiveness is enhanced by the elongated "L" and the cinemascope styling. Those features are present in mark "127". To those features, mark "935" adds a further element (namely, the word "London" below "Lonsdale"). Marks "127" and "935" are to be compared with the Respondent's Mark, the dominant element of which (the word "London") is not distinctive in a trademark sense, but is presented in a distinctive way utilising the elongated "L" and the cinemascope styling, and also has four other elements (the symbols "NaS", the "Swoosh", the word "England" and the flag). Having reminded myself of the approach summarised in Specsavers v Asda [2012] FSR 19 I am not persuaded that bringing into consideration the word "London" (found in mark "935") means that there is any greater likelihood of confusion (direct or indirect) as to the origin of the Respondent's goods. Purchasers know Lonsdale clothing because it distinctively bears the word "Lonsdale": they are not likely to be confused as to origin by an item of clothing bearing the word "London", even if that word is written with an elongated "L" in chiselled block font and in cinemascope style. They are not likely to think that it comes from Lonsdale or from some producer that is economically linked to Lonsdale. At first glance the block of text will look like something that might be found on a Lonsdale product; but by the time the average consumer acting with reasonable circumspection comes to make the purchasing decision the fact that the text does not read "Lonsdale" and the presence of cluttered branding ("NaS", the tick or "swoosh" and the large flag) will mean that the purchaser is under no illusion that the product is not "Lonsdale" or connected in any way with "Lonsdale" but "look-a-like" branding whose pretence is easily penetrated.
15. In result, although there was an error in approach by the Hearing Officer in excluding mark "935", in my judgment that of itself did not lead to a legally incorrect conclusion.

Failure to consider a "Family" of marks

16. I must immediately consider the second challenge to the Hearing Officer's decision. Lonsdale submits that because the Hearing Officer selected only two marks for consideration (and rejected one of those) she failed to take into consideration that there was a "family" of marks (including mark "935"), all with central themes (the elongated "L" and the cinemascope style), and that when purchasers see a variation on that central theme (albeit with minor additions) such as the Respondent's Mark they will assume that it is an indication that the goods are those of the proprietor of that "family" of marks.
17. The Respondent submits that there is no enhanced protection for a "family" of marks, and that each mark must still be assessed individually on its own merits. I agree with this submission. But it does not really address the point being made by Lonsdale. The point is that the existence of a "family" of marks is a factor to be taken into account in assessing the reputation enjoyed by the earlier marks. As expressed in paragraphs 21 and 22 of the judgment of the General Court in IG Communications v OHIM:-

"The concept of a "family" of trademarks simply allows the proprietor of such a family to demonstrate that a likelihood of confusion may be created by the possibility of association between the trademark applied for and the earlier marks forming part of his family… From that point of view, the existence of a family of marks may be regarded… as merely one of the factors to be taken into account in establishing whether there is a connection between the mark applied for and one of the earlier marks forming part of that family, insofar as that earlier mark enjoys a reputation".

So the question is whether the Hearing Officer correctly assessed the reputation of Lonsdale's marks when she apparently considered only one of those marks and not the entire "family".

18. In my judgment although the Hearing Officer was conducting the comparative analysis only as between mark "127" and the Respondent's Mark she did not ignore the fact that mark "127" did not stand alone. She held that it was:-

"..abundantly clear from the evidence that the word "Lonsdale" presented in the cinemascope style with the elongated L has a reputation as it has been used extensively in a variety of marks in relation to the sale of a wide variety of clothing, footwear and headgear over many decades and this will have a positive, though unquantified effect on the distinctive character of the mark as registered".

19. I therefore do not consider that her adoption of a "best case" rather than a "family of marks" approach ultimately led her into error when it came to assessing reputation, because she took into account the fact that features of the mark "127" had appeared extensively in a variety of other marks.

Failure to consider mark "554"

20. Although the Hearing Officer considered that mark "554" (the elongated "L") represented part of Lonsdale's "best case" she held that it had not been used "as and of itself" and that therefore Lonsdale could not rely upon it. Her view was that the elongated "L" had never been used on its own, but always as part of some other registered mark, and generally in a way which failed to treat it as individually distinctive. Lonsdale submits that this holding discloses an error of principle.
21. I agree that to dismiss from consideration mark "554" because it had not been used "as and of itself" is not correct in law.
22. In Nestlé v Mars [2005] ETMR 96 Nestlé (which was the proprietor of the mark "Have a break…have a KitKat") sought to register "Have a break" as a separate registered mark. The question of "use" therefore arose in the context of trying to establish a mark. The Court of Justice addressed the question of whether that phrase had been used as a mark for the purpose of identification of a product as originating from Nestlé. The Court considered that this did not mean that the mark had to have been so used independently but:-

"… may be a result both of the use, as part of a registered trademark, of a component thereof and of the use of a separate mark in conjunction with a registered trademark".

If the relevant consumers perceived the product, designated exclusively by the mark applied for, as originating from a given undertaking it did not matter in which of those two ways the mark had been used: see paragraph [30]. The use sufficed to enable the mark to be registered.

23. In Colloseum Holding AG [2013] ETMR 34 Levi Strauss was the proprietor of a coloured figurative mark consisting of a red rectangular textile label which was sewn into and protruded from the left hand seam of the rear pocket of its jeans. Levi Strauss had never used this mark on its own, but only in conjunction with another registered mark (the word "Levi's" on a red rectangle). Colloseum sold jeans which had a small rectangular red fabric tag sewn into the right hand seam of the rear pocket, and bore its relevant brand name. Levi Strauss said that this tag infringed its registered mark. Colloseum said that Levi Strauss' registered mark was not "used". So the Court of Justice had to address the question whether a registered mark (which constituted one element of another mark) could be put to genuine use on the basis of the use of that other mark. The Court confirmed that a distinctive character might be acquired both (a) from use as part of a registered mark, of a component of it and (b) from the use of a separate mark in conjunction with another registered mark. It held (at paragraphs [30] and [33]):-

"… the conclusion reached by the court in [30] of the judgment in Nestlé must also be applied in respect of "genuine use" for the purpose of preserving the rights of the proprietor of a registered trademark…[T]he criterion of use, which continues to be fundamental, cannot be assessed in the light of different considerations according to whether the issue to be decided is whether use is capable of giving rise to rights relating to a mark or for ensuring that such rights are preserved. If it is possible to acquire trademark protection for a sign through a specific use made of the sign, that same form of use must also be capable of ensuring that such protection is preserved".

In the light of that clear statement of the law, in my judgment the Hearing Officer can be seen to have erred in principle in holding that Lonsdale could not rely on mark "554" because that mark had not been used "as and of itself".

24. However, even though use as part of a composite mark or in conjunction with another mark is in law capable of constituting genuine "use", it remains the case that such use of the mark must still be perceived as indicative of the origin of the product in issue. This is a matter of evidence. In that connection it is not clear on the evidence before the Hearing Officer what the elongated "L" itself added (as a separate mark) to marks "127" (considered by the Hearing Officer) and mark "935" (which ought to have been considered). It was not suggested by Lonsdale that if the Respondent's Mark had been "Lilliput" or "Laddie" using the elongated "L" (but not the chiselled font or the cinemascope layout) relevant consumers would have perceived Lonsdale to be associated with the origin of the goods simply because of the use of the elongated "L" (mark "554").
25. The Hearing Officer summarised her findings in paragraph 42 of her decision in these terms:-

"I found [mark "127"] to have at best, an average degree of inherent distinctive character and that the word Lonsdale, presented in the cinemascope style with the elongated L has been used extensively in relation to the sale of clothing over many decades which will have had an unquantified positive effect on the distinctive character of the mark as registered".

Given that her assessment of the evidence leading to those findings has not been challenged, and given that from that evidence it is not possible to identify any particular distinctiveness that attached to the mark "554" as a component part of the other marks (and that did not attach to the marks "127" and "935" as a whole), I do not consider that her error of principle in excluding mark "554" affected the actual outcome. The evidence did not support a different conclusion.

Misapplication of the relevant tests

26. Having accepted (as the Respondent himself acknowledged) that the word "London" was not distinctive in a trademark sense, the Hearing Officer went on to hold that it was the dominant feature of the Respondent's Mark. Lonsdale submits that it must follow (a) that the only distinctive elements of the Respondent's Mark were the elongated "L" and the cinemascope styling of the word; and (b) if those were the distinctive elements, then it was those features which fall to be compared with Lonsdale's marks (and not the word "London" itself).
27. The Respondent's answer is that this argument confuses two separate concepts. The Respondent submits that the word "London" can be dominant whether or not it is held to be distinctive. Furthermore, the other elements, in particular the letters "NaS" and the "Swoosh", can be distinctive elements even if not dominant. I agree with these submissions.
28. It is trite law that the average consumer perceives a mark as a whole and does not analyse its various details. Perceived as a whole the word "London" is dominant (if not technically distinctive) and is associated with four other features (two of which are distinctive but not dominant, and two of which are neither distinctive nor dominant). I do not consider that the Hearing Officer took into account any feature which she was not entitled to take into account or that she overlooked something which she ought to have considered.

Assessment of unfair advantage/detriment

29. Considering the case under section 5(3) TMA 1994 the Hearing Officer directed herself by reference to the familiar passages in the judgment of the Court of Justice at paragraph [41] to [43] of the judgment in Intel Corporation [2009] RPC 15. Lonsdale complains that the Hearing Officer failed to apply those principles correctly.
30. Lonsdale (first) submit that although the Hearing Officer may implicitly have found that there was a link between Lonsdale's marks and the Respondent's Mark she did not explicitly do so. In my judgment if the Hearing Officer did not find that there was the requisite link, then on the evidence she ought so to have found. The existence of the relevant link must be appreciated globally, taking into account all factors relevant to the circumstances of the case. In the instant case it was clear from the evidence:-

a) That the goods under consideration were identical:

b) That there was near identity between the relevant sections of the public to which the goods were sold:

c) That the use of Lonsdale's marks in relation to the sale of a wide variety of clothing, footwear and headgear over many decades had a positive (albeit unquantified) effect on the distinctive character of (at least) mark "127":

d) That at least the elongated "L" and the cinemascope style were present in the Respondent's Mark:

e) That Lonsdale had a long-established business and had sold its goods very successfully over a number of years.

In the light of those considerations I consider that the Hearing Officer's reference in paragraph [54] of her decision to "those people who make a link between the respective marks" must be read as a recognition by her that a link existed between Lonsdale's marks and the Respondent's mark.

31. It is accepted on behalf of Lonsdale that the mere existence of such a link is not sufficient to establish its case under s.5(3) TMA 1994. It was necessary for Lonsdale to establish both use of the Respondent's Mark without due cause and that such use would take unfair advantage of (or be detrimental to) the distinctive character or repute of Lonsdale's marks.
32. Lonsdale's second complaint is that the Hearing Officer did not conduct that part of the analysis correctly. They submit:-

a) That she failed to appreciate that because Lonsdale was opposing the Respondent's Mark (which had yet to be used) it would not be possible to prove events which demonstrated actual detriment. All that could be done would be to draw appropriate inferences from such facts as were known at the date of the Decision and to assess the reasonably foreseeable consequences.

b) That Lonsdale led evidence and set out the inferences which it asked the Hearing Officer to draw; but the Respondent filed no evidence in answer. So the only question for the Hearing Officer was whether the inferences could properly be drawn from Lonsdale's evidence.

c) The Respondent advanced no positive case of "due cause" to use the Respondent's Mark. The Respondent did not make a case of innocent adoption or set out any circumstances which made the registration and use of the Respondent's Mark appropriate irrespective of its consequences for Lonsdale.

d) Where the Hearing Officer held (in paragraph [55] of the Decision) that "it was not clear exactly what advantage [the Respondent] would gain" she was failing to consider the plain inference that ought to have been drawn from the unexplained adoption of the elongated "L" and cinemascope styling which were distinctive of mark "127" (and also of mark "935" and "Lonsdale's family" of marks). It was self-evident that the Respondent saw an "advantage" in seeking to register the Respondent's Mark and it was a legitimate inference (not mere speculation) that that "advantage" derived from an association with the long established reputation of Lonsdale's Mark.

e) Where the Hearing Officer decided (in paragraph [55] of her Decision) that "there [was] no evidence of any intention of [the Respondent's] part" she erred in law. From the face of the Respondent's Mark itself, the inference could properly be drawn that the Respondent intended to appropriate for himself the reputation that attached to the marks of Lonsdale and others and thereby endeavoured to put his goods in the same league as those with established international reputations. Judicial notice should be taken (in the absence of any evidence) that the mark "NaS" is that used by the rap artist Nasir Bin Olu Dara Jones: and that the "swoosh" is a minor variation on the Nike symbol. The intention "to ride upon the coat tails" of other marks is clear.

f) Where the Hearing Officer decided (in paragraph [55] of the Decision) that she could "see no reason why the capacity of the earlier marks to distinguish [Lonsdale's] goods would be diminished to any extent, and certainly not one that would have any impact on the economic behaviour of the relevant public" she was failing to give any adequate reason for rejecting Lonsdale's case that (on the evidence before the Hearing Officer) there was no other undertaking that had used the elongated "L" or the cinemascope style (or that neither was in any sense common in the trade) and that these features had been "used extensively in various marks by Lonsdale, acquiring a reputation which had a positive effect on the distinctive character of Lonsdale's Marks". The Respondent's use of Lonsdale's famous mark would inevitably erode the distinctiveness of that mark and diminish the ability of the Lonsdale marks to distinguish the goods of Lonsdale from those of other traders. As it was expressed in Intel Corporation [2009] RPC 15 at paragraph 29:-

"… detriment to the distinctive character of the earlier mark, also referred to as "dilution", "whittling away" or "blurring" … is caused when that mark's ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark".

33. I do not accept the point made in paragraph (e) above about the inference that may be drawn from taking judicial notice of the connections of the "NaS" and "swoosh" marks. But subject to that small point (which leaves untouched the inference that may be properly be drawn from the adoption of the dominant feature of the mark itself) I consider that each of the points made by Lonsdale is sound. Even on the Hearing Officer's assessment of the evidence, if she had not confined her consideration to mark "127" (but had also taken fully into account mark "935", mark "554" and any reputation deriving from the whole "family" of marks) the legally correct conclusion was that Lonsdale's objections based on section 5(3) TMA 1994 were made good and the Respondent's Mark ought not to have been registered.
34. As I have said above, at a first glance the block of text in the Respondent's Mark looks like something that Lonsdale might be connected with (a first impression soon dispelled in the case of the average consumer). But that first glance is important. Those who look at the wearer of a product bearing the Respondent's Mark might not get more than a glance and might think the wearer was clad in a Lonsdale product. The creation of that illusion might be quite enough for the purchaser of a "look-alike" product: indeed who but such a person would knowingly buy a "pretend" product? Further, it undoubtedly dilutes the true "Lonsdale" brand by putting into circulation products which do not proclaim distinctiveness but rather affinity with a reputable brand.
35. In my judgment the case under s.5(3) was made out on the evidence as found by the Hearing Officer.
36. I would therefore allow the appeal.