Trade mark decision

BL Number

O/106/01

Decision date

7 March 2001

Hearing officer

Mr M Reynolds

Mark

TAM TAM

Classes

30

Applicant

The B Manischewitz Company LLC

Applicant for Revocation

Arnott’s Biscuits Limited

Revocation

Section 46(1)(b)

Result

Section 46(1)(b) - Registration revoked in its entirety with effect from 29 October 1998.

Points Of Interest

• Genuine use - Although accepting that occasional sales by an overseas firm direct to a UK importer might well constitute genuine use in some circumstances, in this case the Hearing Officer felt that the small amount of trade, lack of information as to how and whether the goods were sold, and doubt as to whether proprietor played an active or consensual role failed to establish genuine use.

Summary

Following detailed analysis of what he regarded as poorly substantiated evidence from the proprietor of small amounts of trade (by importation) under the mark in suit, whether during the 5 years period specified by the applicant, or during or either side of the ‘proviso’ period of Section 46(3), the Hearing Officer was not persuaded that there had been genuine use of the mark.

Nor was he persuaded that for the purposes of Section 46(2) use of certain other marks (including TAMS solus and with other wording) could be considered use of the mark in suit in a form differing only in elements not altering its distinctive character. The application therefore succeeded.