Trade mark decision

BL Number

O/008/03

Decision date

7 January 2003

Hearing officer

Mr D Landau

Mark

ATOMIC

Classes

28

Applicants

Meridian (Luton) Limited

Opponents

Atomic Austria GmbH

Opposition

Sections 5(2)(a), 5(3) & 5(4)(a)

Result

Section 5(2)(a) - Opposition failed

Section 5(3) - Opposition failed

Section 5(4)(a) - Opposition failed

Points Of Interest

• None

Summary

The goods of this applicant are "golf clubs" whereas the goods covered by the opponent's registered mark (also ATOMIC) are "skis, ski-bobs, toboggans (not motorised) for sport, ski sticks; bags and cases, all adapted for use with any of the aforesaid goods. The opponent also filed evidence of use of their mark from 1978 onwards in relation to skis and ski equipment and sought to show that ski activities can be or are on occasions associated with the game of golf. While the Hearing Officer accepted that the opponent had a reputation in its mark in relation to ski equipment he noted several shortcomings in the evidence which sought to link the two sporting activities of golf and skiing and the associated goods used in such activities.

Under Section 5(2)(a) the Hearing Officer noted that identical marks were at issue and went on to compare the respective goods golf and ski equipment. After applying the usual tests the Hearing Officer concluded that the respective goods were in no way similar nor were they complementary or in competition with each other. Opposition failed on this ground.

Under Section 5(3) of the Act the Hearing Officer accepted that the opponent had a reputation in their mark ATOMIC in relation to ski equipment and they therefore had the necessary locus to support their opposition on this ground. However, much of their evidence consisted of assertions and there was no real evidence filed to show that there was any connection between the sports of golf and skiing; that similar marks were used for these goods; that the same firms traded in such goods or that they were sold through the same outlets. There was no evidence as to fettering or tarnishing and the Hearing Officer did not believe that there would be any dilution or unfair advantage. Opposition also failed on this ground.

The Section 5(4)(a) ground was dealt with only briefly since the Hearing Officer was of the view that the opponent had no better case under this section as compared to the other grounds. He observed that the opponent had not established that the relevant public would consider there was any connection between the respective goods. Opposition therefore failed on this ground.