Trade mark decision

BL Number

O/092/03

Decision date

2 April 2003

Hearing officer

Mr E S Smith

Mark

MENIVACT

Classes

05

Registered Proprietor

Pasteur Merieux MSD S.N.C & Aventis Pasteur MSD S.N.C

Applicant for Invalidity

Section 47(2) based on Section 5(2)(b)

Invalidity

Section 47(2) based on Section 5(2)(b)

Result

Section 47(2) & 5(2)(b) - Invalidity action successful.

Points Of Interest

• 1. None

Summary

The application for protection of the mark MENIVACT was made on 19 July 1999 under the provisions of the Madrid Protocol. The application was accepted and protected in the UK from 31 December 1999.

The applicants for invalidity based their application on a Community Trade Mark MENITAC covering goods in Class 5 and with a filing date of 27 January 1998. In the context of Section 5(2)(b) their mark constituted a prior right.

In response to the application for invalidity the registered proprietors did not file a Form TM8 and counterstatement to defend their registration nor did they file any evidence in the proceedings.

In his consideration under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the respective marks MENITAC and MENIVACT. In so doing he took some notice of prior decisions of the Community Trade Mark Office which had been drawn to his attention by the applicants for invalidity. As regards the two marks before him the Hearing Officer considered that there was a high level of phonetic and visual similarity and that the prefix MENI was the dominant element in each of the marks. Overall the Hearing Officer concluded that the marks were confusingly similar and therefore there was a likelihood of confusion. Invalidity action succeeded.