For the whole decision click here: o33699
Result
Section 46(1)(a) and 1(b) - Revocation successful
Section 47, 3(6) and 32(3) - Invalidity partially successful
Points Of Interest
Summary
The registered proprietor filed a counterstatement in the form of an affidavit (later queried) in which he claimed use of the mark ADRENALIN but such use as was claimed was in vague terms and was interspersed with details of company bankruptcy, failed licencing agreements and disputes with other parties. The applicants claimed there had been no real use of the marks at issue; that the registered proprietor had registered his marks without an intention to use; that he had a history of making multiple applications for marks and not proceeding and that the purported affidavit filed was not an affidavit at all since the solicitor who witnessed the document was not a practising solicitor.
As regards this latter point the registered proprietor stated that all evidence filed by him was in the form of "Statements of Truth" and the witness signature was merely of his own signature. The Hearing Officer refused to accept that such a declaration complied with the requirements of the Trade Marks Act and Rules and thus ruled that the registered proprietor had filed no evidence in the proceedings. However, the Counterstatement could be accepted since it did not need to be witnessed or declared.
In revocation proceedings the onus rests on the registered proprietor to show use of his marks. As no evidence of any use had been filed the Hearing Officer found the applicants successful in respect of the six marks the subject of revocation proceedings. Even taking into account the relevant claims made in the Counterstatement, the Hearing Officer reached the same conclusion. With regard to the application for invalidity the Hearing Officer concluded that there had been no intention to use any of the registered marks in classes other than Class 25 and that even in that class the specifications should be restricted as set out in his decision.