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United Kingdom Intellectual Property Office Decisions
You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> MAGIGROW (Trade Mark: Opposition) [2001] UKIntelP o24001 (30 May 2001)
URL: http://www.bailii.org/uk/cases/UKIntelP/2001/o24001.html
Cite as: [2001] UKIntelP o24001
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MAGIGROW (Trade Mark: Opposition) [2001] UKIntelP o24001 (30 May 2001)
For the whole decision click here: o24001
Trade mark decision
- BL Number
- O/240/01
- Decision date
- 30 May 2001
- Hearing officer
- Mr J MacGillivray
- Mark
- MAGIGROW
- Classes
- 01
- Applicant
- Magigrow International Limited
- Opponent
- Scotts Miracle-gro Products Inc
- Opposition
- Sections 3(6), 5(2)(b) & 5(4)(a)
Result
Section 3(6) - Opposition failed
Section 5(2)(b) - Opposition failed
Section 5(4)(a) - Opposition failed
Points Of Interest
- 1. The opponents appealed to the Appointed Person. In her decision dated 19 December 2001 (BL O/583/01) the Appointed Person upheld the Hearing Officer’s decision.
Summary
The opponents opposition was based on their ownership of a number of MIRACLE-GRO registrations and a significant reputation in that mark. The applicants had only very modest user prior to the date of application. Under Section 5(2)(b) it was accepted that identical goods were at issue so the dispute rested on a comparison of the respective marks MAGI-GROW and MIRACLE-GRO. The Hearing Officer accepted that MAGI might be seen as indicating the word MAGIC and thus there was some conceptual similarities between the two marks. However, comparing the marks as wholes and taking into account the possibility of imperfect recollection, the Hearing Officer considered that the marks were sufficiently far enough apart for there to be no real likelihood of confusion.
Under Section 5(4)(a) - Passing Off - The Hearing Officer noted that while the opponents had a reputation in their mark at the relevant date they had not submitted any evidence of actual confusion in the marketplace. Additionally, while there was similarities in the packaging and "get-up" this was insufficient by itself to lead to misrepresentation or confusion since the respective marks MIRACLE-GRO and MAGI-GRO were strong indicators.
Among the evidence filed was an extract from a DIY Magazine which indicated that the applicants were seeking a name like or similar to MIRACLE-GRO. The opponents claimed that this showed bad faith as defined within Section 3(6). However, as the Hearing Officer had concluded in this case that the respective marks are not confusingly similar he did not accept that the applicants had acted in bad faith.