For the whole decision click here: o25402
Result
Section 3(1): - Opposition dismissed.
Section 3(3): - Opposition dismissed.
Section 5(2)(b): - Opposition failed
Section 5(4)(a): - Opposition dismissed.
Points Of Interest
Summary
The essential ground considered by the Hearing Officer was under Section 5(2)(b), where the opponents opposition was based on their registered mark ASTA TAKEABREAK. The element TAKEABREAK was disclaimed and following earlier decisions the Hearing officer concluded that as this was the only element similar to the mark applied for, the opposition must fail on ths ground.
The applicants mark had proceeded to advertisement on the basis of distinctiveness acquired through use and on the basis of Honest Concurrent Use in the face of the opponents registered mark. However, in opposition the conflict had to be dealt with on a normal and fair basis.
The grounds under Sections 3(1), 3(3) and 5(4)(a) were dismissed by the Hearing Officer since these grounds were not supported by the evidence filed by the opponents.