Trade mark decision

BL Number

O/128/02

Decision date

20 March 2002

Hearing officer

Mr G Salthouse

Mark

DYNAMARK

Classes

07

Applicant for Revocation

Emak SPA

Registered Proprietor

Dynamark Corporation

Revocation

Section 46(1)(a) & (b)

Result

Section 46(1)(a) & (b) - Revocation successful

Points Of Interest

• None

Summary

An Intervener filed a counterstatement on behalf of the registered proprietor and subsequently an application to intervene was made by the firm of Murray Inc who claimed to be the beneficial owners of the UK registration. By way of evidence of use of the mark at issue the Intervener filed a copy of an invoice which it claimed referred to the sale of three mowing machines to the UK company Hayter Ltd. The mark DYNAMARK was not shown on the invoice but it was claimed that the designation X29 was an internal code indicating DYNAMARK goods. The sum involved was about £1,400. The Interveners also claimed registration of the mark DYNAMARK in a number of European Countries; sales in these Countries and attendance at the International Trade Fair in Germany in 1996, 1997 and 1998.

The applicants filed evidence of their efforts to discover knowledge or use of the DYNAMARK mark in the UK and claimed that they could find no trace of the mark ever being used or advertised in the UK. The applicants also cast doubt on the attendance of the Intervener at Trade Fairs in Germany or at least their use of the mark DYNAMARK at such shows. Finally the applicants submitted that the Intervener had not proved that it was the beneficial owner of the mark at issue.

Subsequently the Intervener filed details of the assignment of US trade marks from DYNAMARK Corporation to itself. However, they said they had been unable to locate documents assigning the UK registration though they believed it had been the intention that the whole of the Dynamark Corporation business worldwide, including the UK, be assigned to Murry Inc (the Interveners).

In dealing with the application to revoke the Hearing Officer noted that the Interveners had not shown that they were the beneficial owners. This meant that the mark at issue was undefended and the application to revoke succeeded. However, the Hearing Officer went on to consider the use claimed by the Interveners. That use related to a single claimed sale and the surrounding circumstances were not fully explained or documented - particularly confirmation of the internal codes used by the Intervener to conclusively confirm that X29 indicated goods bearing the DYNAMARK mark. In all the circumstances the Hearing Officer came to the view that the Interveners had failed to show genuine use of the registered mark.