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URL: http://www.bailii.org/uk/cases/UKIntelP/2003/o32603.html
Cite as: [2003] UKIntelP o32603
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THE BURY BLACK PUDDING COMPANY (Trade Mark: Opposition) [2003] UKIntelP o32603 (28 October 2003)
For the whole decision click here: o32603
Trade mark decision
- BL Number
- O/326/03
- Decision date
- 28 October 2003
- Hearing officer
- Mr D Landau
- Mark
- THE BURY BLACK PUDDING COMPANY
- Classes
- 29
- Applicant
- The Bury Black Pudding Company
- Opponent
- Chadwick’s Original Bury Black Pudding Ltd
- Opposition
- Sections 3(1)(b) & (c), 3(3)(b) & 5(4)(a)
Result
Section 3(1)(b) & (c): - Opposition successful.
Section 3(3)(b): - Opposition failed.
Section 5(4)(a): - Opposition failed.
Points Of Interest
- None
Summary
The opponents claimed to have used the mark CHADWICK’S ORIGINAL BURY BLACK PUDDING from 1982 and filed details of modest use. Sales were from a market stall in Bury and to wholesale customers in the local area. Both parties filed evidence, some of which had to be disregarded, because it did not comply with Rule 55 of the Trade Mark Rules 2000. Additionally, the evidence was not particularly well focused and it was not clear to the Hearing Officer whether Bury Black Puddings were made to a particular recipe or shape or incorporated ingredients intended to appeal to the palate of the local inhabitants. Also while the opponents had a reputation in their mark, as claimed, they had no separate reputation in relation to “the original Bury Black Pudding” element.
Under Section 3(1)(b) and (c) the Hearing Officer concluded that the words “The Bury Black Pudding” were totally descriptive and there was little added matter in the mark. He found the opponents successful on this ground.
The opponents failed under Section 5(4)(a) because their reputation and goodwill subsisted essentially in the CHADWICK’S element of their mark and there was no possibility of confusion or deception with the applicants mark.
Under Section 3(3)(b) the ground was on the basis that deception would occur if the goods, black puddings, did not come from Bury. As the evidence showed that most Bury Black Puddings were produced outside Bury and that the term Bury Black Pudding was not precise the Hearing Officer concluded that there could be no deception. Opposition failed on this ground.