Trade mark decision

BL Number

O/161/06

Decision date

14 June 2006

Hearing officer

Mr M Foley

Mark

VITALITE

Classes

05, 29, 32

Registered Proprietor

The Sunrider Corporation t/a Sunrider International

Applicants for a declaration of invalidity

Vitasory International Holdings Limited

Applications for Invalidation

Section 47(1) (citing Sections 5(2)(b); 5(3) & 5(4)(a))

Result

Application for invalidation Section 47 (citing Sections 5(2)(b), 5(3) & 5(4)(a)): partially successful.

Points Of Interest

• Comparison of the marks, VITA & VITASOY v VITALITE.

Summary

The evidence of use of the applicants’ marks was ‘rather thin’ and showed use on only some of the goods in respect of which they were registered. The Hearing Officer therefore confined his deliberations to the goods on which use had been shown. One of the applicants’ marks was VITA and the other three were VITASOY.

Having assessed the goods and the respective marks under Section 5(2)(b) the Hearing Officer found the applicants’ partially successful in respect of their VITA mark but not successful in respect of their VITASOY marks.

The case under Section 5(4)(a) did not advance their position beyond that already achieved under Section 5(2)(b); neither did the case under Section 5(3).

The defence of acquiescence (Section 48) did not apply as the VITALITE mark had not been in use as a registered trade mark for five years at the date of application.

In view of the ‘score draw’ the Hearing Officer made no award of costs.