Trade mark decision

BL Number

O/383/00

Decision date

10 October 2000

Hearing officer

Mr S P Rowan

Mark

TITAN

Classes

25, 28

Applicants

Leisure Services Group Limited

Opponents

Head Sport AG

Interlocutory Hearing of a request to admit a Form TM 7 and statement of grounds into Opposition Proceedings

Result

TM 7 refused.

Points Of Interest

• The introduction of Patent Office’s deposit account system does not mean that the Comptroller has set herself up as a banker.

Summary

A form TM 7 had been filed by facsimile on the last day of the three month period allowed for the filing of notices of opposition, but as there were insufficient funds in the filer’s deposit account the document was not given a filing date as of that day and hence was out of time.

At the subsequent hearing of the request that the opposition be accepted, the opponents’ representative submitted that the Patent Office’s deposit account system was a "current account" and hence subject to the rule established by "Clayton’s Case (1861) 1 Mer 572 at 808" q.v. ie that it is one ‘blended fund’. Therefore the TM 7 filed against the ‘overdrawn’ deposit account should have nonetheless have been accepted because of the arrival in the Office of a bundle of other unrelated filings which were accompanied by a cheque. This cheque would have cleared the earlier deficit and whilst this would have meant that some of the items in the bundle were not covered, the TM 7 in this case would have been covered.

The Hearing Officer did not accept that the deposit account was a bank account; but even it were, the rule in "Clayton’s Case" would result in a solution which would be ‘impracticable’, and hence might not apply (Chitty on Contracts 28th Edition).

In the result the Hearing Officer maintained the refusal of the TM 7; the opposition period had therefore expired and the application was permitted to proceed.