Trade mark decision

BL Number

O/414/02

Decision date

14 October 2002

Hearing officer

Mr J MacGillivray

Mark

PARTY IN THE PARK 95.8 CAPITAL

Classes

09, 16, 25, 28, 35, 38, 41

Applicant

Capital Radio Plc

Opponent

Emap Performance Ltd

Opposition

Section 3(1)(b), (c) & (d)

Result

Section 3(1)(b): - Opposition failed.

Section 3(1)(c): - Opposition failed.

Section 3(1)(d): - Opposition failed.

Points Of Interest

• See also similar decision under BL O/412/02 in respect of similar marks in the same classes.

Summary

The decision in this case was the same as set down under BL O/412/02.

The opponents opposition was based on the fact that they had earlier applied for registration of the mark PARTY IN THE PARK and had been refused registration by the Trade Mark Registry, following a hearing, because the mark was considered descriptive and non-distinctive. The opponents also filed details of use from 1992 onwards and they submitted that the mark was used by third parties in a descriptive capacity.

The applicants also claimed to have used the mark PARTY IN THE PARK from 1992 onwards and claimed the mark was associated with the name of their company. The applicant’s evidence was disputed and criticised by the opponents as being vague and not substantiated.

Under Section 3(1)(b) the Hearing Officer had no hesitation in holding that the words PARTY IN THE PARK were generic and descriptive and went on to consider the acceptability of the marks in their totality, bearing in mind the presence of 95.8 CAPITAL FM'S and device. Taking this additional matter into account the Hearing Officer concluded that the marks possessed distinctive character and were thus acceptable for registration. Opposition failed on this ground.

Opposition also failed under Section 3(1)(c) and (d) for the same reasons as under Section 3(1)(b).