Trade mark decision

BL Number

O/394/03

Decision date

18 December 2003

Hearing officer

Mr Richard Arnold QC

Mark

POLICE

Classes

03

Registered Proprietor/Appellant

R Mahtani

Applicants for Revocation/Respondents

De Rgio SPA

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

Result

Appeal allowed; total revocation rescinded.

Points Of Interest

• 1. Genuine use; size of proprietor's undertaking.
• 2. Genuine use; quantity; de minimis
• 3. Present status of Ansul (Ansul BV v Ajax Brandbeveiling BV) Case C-40/01 [2003] RPC 40
• 4. Right of party to be present at appeal before Appointed Person.

Summary

At first instance (see BL O/165/03) the Hearing Officer had found the application for revocation successful. The registered proprietor appealed to the Appointed Person.

The registered proprietor also requested an adjournment of the appeal hearing, already fixed, as she was abroad and wished to attend in person. The Appointed Person, however, considered that an adjournment was not necessary and was not justified.

The principal grounds of appeal were that the Hearing Officer had misdirected himself in law, a) in holding that the size of the undertaking was irrelevant and b) in holding that in some markets use of the mark may have to be quantitatively significant for it to be deemed genuine.

In the result; having reviewed the present state of the law and the facts in this case, the Appointed Person concluded that the Hearing Officer had indeed misdirected himself on these two points. The use shown had been genuine use, he decided. He therefore allowed the appeal to the extent of setting aside the order for total revocation. He did, however, order the partial revocation set out in the Hearing Officer’s alternative finding.

The costs order was also set aide, and no costs were awarded in respect of the appeal.