Trade mark decision

BL Number

O/046/05

Decision date

2 March 2005

Hearing officer

Mrs A Corbett

Mark

MOTOWN

Classes

41

Applicant for Revocation

Jimmy Osman

Registered Proprietor

Motown Record Company LP

Revocation

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

Result

Request by applicant to allow proceedings to continue: - Request allowed.

Points Of Interest

• 1. The Registered Proprietor appealed to the Appointed Person. In his decision dated 15 September 2005 (BL O/261/05) the Appointed Person upheld the Hearing Officer's decision and dismissed the appeal.

Summary

Interlocutory Hearing to decide whether proceedings should be allowed to continue as the applicant had filed no evidence in support of his application.

The application for revocation was filed on 25 March 2004. On 1 July 2004 the registered proprietor filed its evidence in support of its registration and a copy was sent to the applicant. A period to 16 October 2004 was allowed for the applicant to file his evidence and he was warned that failure to file evidence in support of the application might result in the application being deemed abandoned by the Registrar.

On 6 October 2004 the applicant advised the Registrar that he intended to rely on written submissions or attend a hearing if necessary to support the application. Following further correspondence which included a request from the applicant for an extension of time within which to file evidence, an interlocutory hearing was appointed to decide if the proceedings should be allowed to continue. The registered proprietor asked that the application for revocation be deemed abandoned.

The Hearing Officer considered carefully the terms of Section 46(1)(a) and (b) and Rule 31 and in particular Rule 31(4) and (5). The Hearing Officer decided that in view of the wording of Rule 34(4), the filing of evidence by the applicant was not mandatory. In revocation proceedings the onus is on the registered proprietor to show use of its mark and it is up to the proprietor to file its best evidence. This may be challenged by the applicant by written submissions or at a hearing. The Registrar has to decide the proceedings based on the particular facts. In this case the Hearing Officer decided that the proceedings should continue and he allowed the registered proprietor a further period to file any further evidence it wished to do so under Rule 31(6).

In view of the decision reached above, the request by the applicant for an extension of time was not considered.