Trade mark decision

BL Number

O/168/05

Decision date

15 June 2005

Hearing officer

Mr Geoffrey Hobbs QC

Mark

Michaels DRINKS STOP

Classes

35

Applicant

Michaels Foodmarket, Michaels Drinkstop Ltd & Michaels Wholesale Ltd (3 applicants)

Opponent

Drinkstop Ltd

Opposition

Appeal to the Appointed Person against an interlocutory decision of the Registry in Opposition Proceedings.

Result

Appeal withdrawn; costs awarded to applicants.

Points Of Interest

• 1. Amendment of form of application; not opposable by a third party.
• 2. Procedural irregularities: Rule 66.
• 3. Costs in proceedings before the Appointed Person.

Summary

Before the Registrar the opponent had objected to an amendment of the form of application and had contended that if the amendment were accepted a new filing date should be accorded. Following an interlocutory hearing (see BL O/333/04) the Registry dismissed both these objections, but did set a new date for the filing of the opponent's evidence. The opponent appealed to the Appointed Person, who began by noting that there is no provision in the Act or the Rules for opposition to a request for such an amendment. It is a matter between the applicant and the Registrar. If the request is rejected the applicant can appeal under Section 76(1); if a third party wishes to challenge the decision they may apply to the Court for permission to do so by way of judicial review. Why the Registry had proceeded on the basis that the matter ought to be determined adversarially was not apparent to the Appointed Person.

A hearing before the Appointed Person had established that the opponent's objection was in fact an application for correction of a procedural irregularity under Rule 66. Submissions in writing were invited but in the event the appeal was withdrawn. The only issue before the Appointed Person, therefore, was the applicants' request for costs, which was granted.