Trade mark decision

BL Number

O/102/05

Decision date

18 April 2005

Hearing officer

Mr D Landau

Mark

MARTEX LUXOR

Classes

24, 27

Applicant

Westpoint Stevens Inc

Opponent

Readmans Limited

Opposition

Sections 5(2)(b) & 5(4)(a)

Result

Section 5(2)(b): - Opposition successful.

Section 5(4)(a): - Not considered.

Points Of Interest

• 1. None

Summary

The opponent (hereafter referred to as Readmans) owns a registration of the mark LUXOR and device in Class 24. Readmans also claimed use of its mark but such evidence as was filed was insufficient to show that it had a reputation in its mark at the relevant date.

The applicant (hereafter referred to as Westpoint) also filed evidence. It referred to earlier opposition proceedings between the parties and stated that in those proceedings Readmans had not claimed use of its mark.

Under Section 5(2)(b) the Hearing Officer compared the respective goods in Class 24 and concluded that identical goods were at issue. As regards WestPoint's goods in Class 27 - bath rugs and bath mats - the Hearing Officer determined that such goods were very similar to the textile articles and towels within Readmans Class 24 registration. In comparing the respective marks LUXOR and device and MARTEX LUXOR the Hearing Officer decided that LUXOR was the dominant element in Readmans mark. Thus there was similarity between the respective marks visually, phonetically and also, in some cases, conceptually. It was also possible that MARTEX in WestPoint's mark would be seen as a house mark combined with the LUXOR element as a subsidiary name. Overall the Hearing Officer concluded that the respective marks were similar and that Readmans succeeded in their ground under Section 5(2)(b).

The Section 5(4)(a) ground not considered in view of the decision under Section 5(2)(b). In any case Readmans had failed to establish a reputation in its mark at the relevant date.