Trade mark decision

BL Number

O/467/02

Decision date

25 October 2002

Hearing officer

Mr Geoffrey Hobbs QC

Mark

DEVICE ONLY MARK

Classes

25

Applicants/Respondents

Yosif Abdulrahman Al-Bassam Trading Establishment

Opponents/Appellants

Lappet Manufacturing Co Ltd

Appeal to the Appointed Person concerning the admission of certain evidence in Opposition proceedings

Result

Appeal allowed; the evidence in question was admitted to the proceedings and directions were given for further procedural steps.

Points Of Interest

• Procedural irregularities in the filing of evidence; matters to be considered when deciding whether and on what terms procedural irregularities are to be rectified.

Summary

At first instance (see BL O/107/01) the Hearing Officer had ruled that certain evidence filed by the opponents was not ‘evidence in reply’ and he also declined to admit it to the proceedings in exercise of the Registrar’s discretion. The opponents appealed to the Appointed Person.

The Appointed Person having reviewed the facts of the case agreed that there had been a serious irregularity in the filing of evidence by the opponents and he listed three factors which the Registrar had to consider in deciding whether and on what terms such an irregularity should be rectified, viz:-

the materiality of the evidence in question to the issues that the Registrar has to determine;

the seriousness of the irregularity which the Registrar is being asked to rectify, and

the justice and fairness of subjecting the opposite party to the burden of the evidence in question at that stage of the Registry proceedings.

These were matters of degree. Consideration of them may result in leave for the filing of evidence under Rule 13(11) that would not be admitted if it was being tendered for the first time on appeal to the High Court.

In the result the Appointed Person decided:-

the appeal was allowed;

the Applicant was allowed three calendar months within which to file evidence in response to the Opponents’ evidence (now admitted to the proceedings);

the Opponent would need the permission of the Registrar to file any further evidence in response and

the costs of the Appeal would be determined at the substantive hearing of the Opposition.