Trade mark decision

BL Number

O/059/06

Decision date

7 March 2006

Hearing officer

Mr D Landau

Mark

EINSTEIN

Classes

25

Registered Proprietor

Continental Shelf 128 Limited

Applicant for Revocation

The Hebrew University of Jerusalem

Application for Revocation

Section 46(1)(b)

Result

Application for revocation, Section 46(1)(b): - Successful.

Points Of Interest

• 1. Intervention under Rule 35.
• 2. by consent; onus on the registered proprietor to establish this in evidence.

Summary

As the evidence of use filed with the counterstatement had consisted of a witness statement (plus exhibits) by a man claiming to be the sales executive of Hornby Street Limited, 'a sister company' of the registered proprietor, the first issue to be addressed was whether the use shown was use with the consent of the registered proprietor. In addressing this, the Hearing Officer proceeded on the basis that account could be taken of the evidence despite the fact that Hornby Street Limited had not applied to be an intervener as per Rule 35. Hornby's standing had not been challenged by the applicant for revocation and so the Hearing Officer did not rule on that point.

However, the relationship between Hornby and the registered proprietor had not been explained and the Hearing Officer ruled that this could not be a matter for conjecture and speculation. The onus was on the proprietor to show use. The documents had been served on Shelf but the response had been by Hornby. This did not establish that the use was by or with the consent of the proprietor. The application for revocation therefore succeeded.

In case he should be found wrong in this, however, the Hearing Officer went on to consider what part of the registration should survive. In the result he found that the specification should be reduced from "articles of clothing included in Class 25" to "casual outer clothing for men in Class 25"