Trade mark decision

BL Number

O/293/04

Decision date

26 September 2004

Hearing officer

Mr M Reynolds

Mark

MEI HUA & device containing Chinese characters (series of 2 marks)

Classes

30

Registered Proprietor

Matthew's Foods (A Scottish Partnership)

Applicants for a declaration of Invalidity

China National Cereals, Oil & Foodstuffs Import & Export Corporation

Application for Invalidation

Section 47(2) (citing Sections 5(2)(b), 5(3) & 5(4)(a))

Result

Application for invalidation, Section 47(2), citing Section 5(2)(b) successful. No formal findings under Section 5(3) or 5(4)(a).

Points Of Interest

• 1. Average consumer of “ethnic” foodstuffs.
• 2. Comparison of the marks MEI HUA, in "plum blossom" device with Chinese characters v HUNG MEI with "plum, blossom" device and Chinese characters.

Summary

The Hearing Officer considered the matter first under Section 5(2)(b). Initially he focused on the question of who might constitute the average consumer of the goods "currently of prime interest to the parties" (prawn crackers) and he concluded that it would be wrong to take too narrow a view of that question since "ethnic food products" might initially be introduced through restaurants but might later be made more widely available. In short he considered that "due allowance must be made for both Chinese and non-Chinese speakers".

It was clear that some identical goods were involved. The applicants' mark consisted of a "blossom device" containing Chinese characters and accompanied by the words HUNG MEI.

After a careful analysis of all the relevant factors and taking account of the facts that the goods were not confined to Chinese foodstuffs, nor directed solely at Chinese speakers, the Hearing Officer found a likelihood of confusion and the application citing Section 5(2)(b) succeeded accordingly.

In view of this success he did not go on to give detailed consideration to the matter under Sections 5(3) or 5(4)(a).