Trade mark decision

BL Number

O/475/01

Decision date

29 October 2001

Hearing officer

Mr Geoffrey Hobbs QC

Mark

CERNIVET

Classes

05

Registered Proprietor

Cernitin SA

Applicant for Revocation

Clintec Benelux SA

Revocation

Section 46(1)(b)

Result

Section 46(1)(b): - Application for revocation successful.

Points Of Interest

• 1. Proper reasons for non-use. The Appointed Person considered this question in some detail and commented "given the degree of elasticity inherent in the concepts of "proper reasons"and "obstacles" to use, I will only say that I do not see why the 5 year rule should be relaxed in cases where it was not unreasonable to expect genuine use of the trade mark to have occurred during the relevant 5 year period."

Summary

In their evidence the registered proprietors indicated that their company had been merged into another company Cerbios Pharma SA and that that company was entitled to be entered on the register as proprietor. No details were provided in the evidence but the Appointed Person concluded from the papers before him that it was likely that the counterstatement filed by Cernitin SA (the registered proprietor) had in fact been filed by a non-existent company and that the application for revocation was liable to be granted under Rule 31(4) for lack of a duly filed counterstatement as required by Rule 31(3).

The Appointed Person carefully reviewed the evidence of use claimed by the registered proprietors in relation to an "Oral Doser for piglets" and concluded that there had in fact been no genuine use of the trade mark by the proprietors.

With regard to the claimed "proper reasons for non-use" the Appointed Person decided that the claims made were mainly assertion and there was little evidence to support the claims made. It was true that there were some regulatory hurdles to be overcome but it appeared that the principal reason for non-use was that there was not a commercial market for the company’s products during the relevant period.