Trade mark decision

BL Number

O/301/01

Decision date

12 July 2001

Hearing officer

Mr M Reynolds

Mark

I CAN’T BELIEVE IT’S NOT BUTTER

Classes

16

Registered Proprietor

Unilever Plc

Applicants for Invalidation

Kerry Group Plc

Application for Declaration of Invalidity

Section 47(1)

Result

Application for invalidation partially successful.

Points Of Interest

• 1. Bona fide intentions to use.
• 2. Coverage of "printed matter".
• 3. Use on "promotional matter".

Summary

The registration sought to be invalidated was in respect of "Paper, cardboard, printed matter; photographs, instructional and teaching material; cookery books; recipe books; all included in Class 16".

The applicants alleged that the registered proprietors had had no bona fide intention to use the mark in respect of such goods (Section 3(6)) and such use as there had been could not be deemed to be "trade mark usage". The Hearing Officer noted that the matter had to be determined by reference to the proprietors’ intentions at the time of the application for registration rather than the genuine use which had been made of the mark since registration, which would have been the case had the attack been made under Section 46. However, as there was no other evidence of actual trade in Class 16 goods or claims as to the proprietors’ specific intentions in terms of developing a trade in Class 16 goods, he felt entitled to assume that the use on recipe books and playing cards was the extent of the registered proprietors’ intentions. He therefore declared the remainder of the proprietors’ registration invalid, leaving it to cover "recipe books, cookery books and playing cards".