Trade mark decision

BL Number

O/282/05

Decision date

17 October 2005

Hearing officer

Professor Ruth Annand

Mark

OMEGA CONSTELLATION

Classes

14

Registered Proprietor/Appellant

Omega SA (Omega AG) (Omega Ltd)

Applicants for Revocation/Respondent

Omega Engineering Inc

Appeal to the Appointed Person against the decision of the Registrar’s Hearing Officer in revocation proceedings.

Result

Appeal partially successful. ..

Points Of Interest

• 1. Use of mark as registered.
• 2. Admission of further evidence on appeal.
• 3. Specification of goods/services; "pernickety descriptions are best avoided"

Summary

At first instance (see BL O/017/05) the Hearing Officer had found that the use shown by the proprietor in relation to clocks was not use of the mark as registered and was not genuine use and he had reduced the specification to the ‘watches’ on which use had been shown. The proprietor appealed against this decision and also sought to adduce further evidence in respect of the appeal.

After due consideration the Appointed Person admitted the further evidence. She did not, however, disagree with the Hearing Officer’s finding that the use shown had not been use of the mark as registered and she therefore did not need to consider whether that use had been genuine.

She did, however, agree (per ANIMAL Trade Mark [2004] FSR 383) that "pernickety descriptions of goods and services are best avoided” and therefore she accepted the appellant’s request to have a specification for “horological instruments; parts and fittings therefor".

Since both sides had achieved partial success she decided that each should bear their own costs in respect of the appeal. In view of the lateness of the application, however, she ordered the appellants to pay costs to the respondents in respect of the further evidence on appeal