Trade mark decision

BL Number

O/071/03

Decision date

18 March 2003

Hearing officer

Mr D Landau

Mark

PULSE FEEDBACK

Applicant

YSC Limited

Opponent

Hutchinson Whampoa Enterprises (Bahamas) Ltd

Opposition

Hearing of an Application to strike out a Section 3(4) ground in Opposition Proceedings.

Result

Section 3(4) ground struck out.

Points Of Interest

• 1. Provisions of Council Regulation (EC) No 40/94 cannot be used as the basis of a ground of opposition under Section 3(4).
• 2. The Registrar has no vires to apply Article 9(1)(a) of the Regulation
• 3. Striking out : areas of developing jurisprudence.

Summary

Following an interlocutory hearing in these proceedings the Hearing Officer had struck out a ground of opposition under Section 3(4). The opponents requested a statement of his reasons.

First, the Hearing Officer decided that Section 3(4) was not a valid ground of opposition in this case. The opponents were relying upon a provision of the Regulation, ie the trade mark law of the Community. This was specifically excluded. Secondly, the Registrar has no jurisdiction in matters arising from Article 9 of the Regulation. Thirdly, that Article was concerned with use of a mark in the course of trade; it did not relate to applications for registrations.

The Hearing Officer having ruled that the Section 3(4) ground was invalid, he went on to consider if it should be struck out. In the result he decided that it should. This was not an area of developing jurisprudence; the law had been fully argued at the hearing; facts or evidence supplied in respect of Section 3(4) would be no different, in this case, from those supplied in respect of Section 5.

Because the matter could have been dealt with at the main hearing, the Hearing Officer awarded costs to the applicants.