Trade mark decision

BL Number

O/227/05

Decision date

13 July 2005

Hearing officer

Professor Ruth Annand

Mark

OMEGA

Classes

09

Registered Proprietor/Appellant

Omega Engineering Incorporated

Applicants for Invalidation/Respondent

Omega SA (Omega AG) (Omega Ltd)

Appeal to the Appointed Person against the decision of the Registrar's Hearing Officer in invalidation proceedings.

Result

Appeal dismissed. -

Points Of Interest

• 1. Material date for determination of relative rights; in an appropriate case a reference to the ECJ may become necessary.

Summary

At first instance (see BL O/211/04) the Hearing Officer had found for the applicants under Sections 5(2)(b) and 5(4)(a), in respect of period timers, and had ordered the removal of those items from the registrations. The registered proprietor appealed to the Appointed Person, contending that the Hearing Officer had erred in finding similarity in the goods because he had attached too little significance to the qualifications "all for scientific and/or industrial purposes" in a sophisticated area of trade. He had also erred in holding that the relevant time for determining the parties relative rights was the date of the application for registration.

The Appointed Person upheld the Hearing Officer's findings in respect of Sections 5(2)(b) and 5(4)(a) but came to a different view about the material date. Since this latter issue was not crucial in this case the appeal was dismissed but the Appointed Person recorded her view that in an appropriate case a reference to the ECJ for a preliminary ruling may be necessary.