Trade mark decision

BL Number

O/258/98

Decision date

8 December 1998

Hearing officer

Mr A James

Mark

REACT

Classes

25

Applicant

React Music Limited

Opponent

Update Clothing Limited

Opposition

Section 5(2)(b)

Result

Section 5(2)(b) - Opposition failed.

Points Of Interest

• 1. Notional and fair use. Even if an opponent shows no use of his registered mark, notional and fair use must be assumed when considering conflict under Section 5(2).
• 2. Identification of trade origin of clothing. The Hearing Officer said he was prepared to accept that a majority of the public rely primarily on visual means to identify the trade origin of clothing though he would not go so far as to say that aural means of identification are not replied upon.
• 3. The opponents appealed the Hearing Officer’s decision to the Appointed Person. Decision upheld see SRIS O/472/99

Summary

The opponents opposition was based on ownership of the mark REACTOR in Class 25. Some use was claimed but in the event this claim was withdrawn. It was common ground that identical goods were at issue so the matter fell to be decided by a comparison of the respective marks REACTOR and REACT and device.

The Hearing Officer took the view that visually the respective marks were quite different and they were also different conceptually. Phonetically the words REACT and REACTOR are quite close but the Hearing Officer concluded that even aurally, the device element of the applicants mark must be considered. In summary he concluded that there was no likelihood of confusion.