Trade mark decision

BL Number

O/332/04

Decision date

8 November 2004

Hearing officer

Mr J MacGillivray

Mark

Isosceles CONSULTING INC. Vitality Driver

Classes

35

Applicant for Revocation

Field Fisher Waterhouse

Registered Proprietor

Marketing Triangle Incorporated

Revocation

Section 46(1)(a) & 1(b)

Result

Section 46(1)(a) & 1(b) - Application for revocation successful

Points Of Interest

• 1. If a registered proprietor uses a mark different from that registered then the use may not be relevant and leave the registration open to attack.
• 2. The registered proprietor appealed to the Appointed Person. In her decision dated 15 April 2005 (BL O/122/05) the Appointed Person upheld the Hearing Officer's decision.

Summary

The applicant for non-use submitted that the registered mark had not been used in the five years following registration or for an uninterrupted period of five years prior to the application. The relevant periods thus covered the period 1996 to 2003 when the application for revocation was made.

The registered proprietor filed use of what it said was its mark and the Hearing Officer accepted that there had in fact been use of marks by the registered proprietor during the relevant period. However, close inspection showed that the proprietor had used marks such as ISOSCELES CONSULTLING INC without the VITALITY DRIVER and device element and BRAND VITALITY DRIVER and device without the words ISOSCELES CONSULTING INC. There was in fact no use of the mark as registered and the Hearing Officer decided that separate use of the various elements was use of different marks as compared to that registered. The application for revocation was thus successful.