Trade mark decision

BL Number

O/163/00

Decision date

9 May 2000

Hearing officer

Mr G Salthouse

Mark

DEVICE

Classes

35, 36

Applicant

Aberdeen Trust Plc

Opponent

Ueberseebank AG

Opposition

Sections 3(6); 5(1); 5(2)(a); 5(2)(b) 5(4)(a) & 5(4)(b)

Result

Section 5(1) - Opposition failed

Section 5(2) - Opposition successful

Other grounds not considered

Points Of Interest

• None

Summary

Opposition based on opponent’s registration in Class 36 of a device mark consisting of an equilateral triangle divided by white line parallel to its base line, the area below the line being coloured black and that above the line being coloured red. The mark in suit was found to differ only in that the dividing line was somewhat broader and there was no colour limitation. As depicted, the mark in suit is also rotated through 120° compared to the opponent’s mark, but in the Hearing Officer’s view this was not a significant distinction in the absence of anything in the mark in suit to denote the "top" or "bottom" of the mark, although the opposition under Section 5(1) failed for want of complete identity.

Under Section 5(2), however, the Hearing Officer applied the usual case law and determined that since the respective marks covered the same or similar financial services, there was a likelihood that the average consumer would be confused, given imperfect recollection and the fact that normal and fair use of the mark in suit could include use in any colour.