Trade mark decision

BL Number

O/219/02

Decision date

23 May 2002

Hearing officer

Mr S P Rowan

Mark

DYNA-TI

Classes

10

Applicants

Precision Orthodontics Limited

Opponents

Accius B.V.

Opposition

Sections 5(2)(b) & 5(4)(a)

Points Of Interest

• 1. Similarity of goods: relevant public
• 1. ‘State of the register’ evidence

Summary

The opposition was based on the opponents’ own registration and use of their mark DYNA. The Hearing Officer dealt with the matter, first, under Section 5(2)(b). Although the applicants contended that the word, DYNA was not distinctive for goods in Class 10 (bringing forward ‘state of the register’ evidence in support of this), the Hearing Officer decided to proceed on the basis that the opponents’ earlier trade mark was ‘highly distinctive’; however, he did not accept that the opponents’ mark enjoyed an enhanced reputation at the relevant date. After comparing the marks he concluded that visually and aurally there was a high degree of similarity between them, and a degree of conceptual similarity also. Comparing the goods, the Hearing Officer concluded that there was some, albeit a low degree of similarity between them. Taking these findings into account he went on to find that there was a likelihood of confusion within the meaning of Section 5(2)(b).

Under Section 5(4)(a), the Hearing Officer noted that there was no evidence as to how the opponents’ mark had been used prior to the relevant date. Without it, he could not find the necessary goodwill or reputation. That ground failed accordingly.