Trade mark decision

BL Number

O/113/00

Decision date

23 March 2000

Hearing officer

Mr M Foley

Mark

MISCELLANEOUS

Classes

03

Applicant

Goldenglow International

Opponent

Slim Images Ltd

Opposition

Sections 1(1), 3(1) & 5(2)(b)

Result

Sections 1(1) & 3(1)(a) - Opposition dismissed

Section 3(1)(d) - Opposition dismissed

Sections 3(1)(b) & 3(1)(c) - Opposition successful

Sections 5(2)(b) - Opposition successful

Points Of Interest

• See also under SRIS O/114/00.

Summary

Hearing Officer had no difficulty in finding the mark to be graphically represented, given the inclusion in the application of a colour photograph with appropriate accompanying text, and having regard to opponent's three earlier registrations covering different two-colour combinations applied to identical goods (tanning accelerators). Opposition under Sections 1(1) and 3(1)(a) therefore dismissed. He also found no evidence to support opposition under Section 3(1)(d).

Opposition under Sections 3(1)(b) and (c) was, however, upheld since the mark in suit was found to consist of the actual colours of the goods themselves, and thereby descriptive of a characteristic of the goods, whilst the evidence failed to establish that the mark had become distinctive by virtue of the prior use made of it, which was in conjunction with the words SOL-RAPIDE.

Opposition under Section 5(2)(b) also upheld, the Hearing Officer finding that the dominant common component of the various marks was the concept of two differently-coloured immiscible liquids, which was not found to be in widespread use throughout the industry, and which meant that a consumer familiar with the opponent's three different colour combinations for identical goods might assume that the applicant's goods are an addition to that range.