Trade mark decision

BL Number

O/468/02

Decision date

30 October 2002

Hearing officer

Professor Ruth Annand

Mark

ACRYLIOS

Classes

09, 10

Applicants/Respondents

Group Chauvin

Opponent/Appellants

Alcon Pharmaceuticals Limited

Appeal to the Appointed Person against the decision of the Registrar’s Hearing Officer in Opposition Proceedings

Result

Section 5(2)(b) - Appeal allowed; opposition successful

Points Of Interest

• Association : likelihood of confusion.

Summary

At first instance (see BL O/559/01) the Hearing Officer had dismissed the opposition under Sections 3, 5(2)(b) and 5(3). The opponents appealed against his findings under Section 5(2)(b). The Appointed Person noted that in the light of the REEF case, she should show a real reluctance to interfere in the Hearing Officer’s decision, based on a multifactorial assessment, in the absence of a distinct and material error of principle.

The Appointed Person noted that the Hearing Officer, in applying the "likelihood of confusion" factors deriving from the leading ECJ cases, had elided the penultimate and last factors "so as to render the latter meaningless". Also the Hearing Officer had erred in not comparing the mark sequentially against the marks cited by the opponents, and had not devoted sufficient attention to comparing the marks as a whole.

There was similarity in the goods and the Hearing Officer’s decision had not mentioned other points of coincidence. Taking these points into consideration the Appointed Person found there was a tangible risk that the consumer would be confused.

The appeal was allowed.