Trade mark decision

BL Number

O/372/06

Decision date

20 December 2006

Hearing officer

Mr Richard Arnold QC

Mark

BRUTT HELICAL BRUTT BRUTT BAR BRUTT BOND

Classes

06, 19

Applicant for Invalidation

Brutt Beteiligungsgesellschaft MBH Daniela Brutt Brutt Saver Germany GMBH Brutt Saver Hungary KFT

Registered Proprietor

Target Fixings Limited

Invalidity

Section 49(1) based on Section 3(6) & Section 60

Result

Section 3(6): Appeal successful. Application for invalidation successful. Section 60: Not considered in detail.

Points Of Interest

• 1. See Hearing Officer’s decision dated 10 April 2006 (BL O/100/06).
• 2. The burden of proof (paragraph 21)
• 3. The standard of proof (paragraph 22)
• 4. Inference (paragraphs 25-30)

Summary

In his decision dated 10 April 2006 (BL O/100/06) the Hearing Officer had found in favour of the registered proprietor. The applicant appealed to the Appointed Person.

On appeal the applicant contended that the Hearing Officer had made four errors of principle in that he had applied an incorrect standard of proof; had proceeded on the basis that he was not permitted to draw inferences; that he had wrongly speculated as to the existence of a factual scenario which neither side had put forward and finally that we had failed to consider the evidence as a whole.

The Appointed Person considered there was substance in the first two points raised and particularly in relation to the fourth ground of appeal. The Appointed Person observed that the Hearing Officer’s decision did not contain any clear findings of fact based on his assessment of the evidence.

The Appointed Person went on to review the evidence in detail and set down the history of the relationship between the proprietor and the applicants (paragraphs 32-85).

In particular the Appointed Person noted that BRUTT was the English version of the German surname BRÜTT and was used by the Brutt Group of companies of which Mr Gunter Brütt and his family were principals. The evidence established that BRUTT had been used as a trade mark before the relationship between Target and the Brutt group of companies commenced and its use in the joint venture was approved by Mr Brütt. The registered proprietor had filed the application to register the marks in suit just before the relationship between the two companies was terminated and it had not informed the Brutt Group of its actions or sought consent.

Looking at the overall situation the Appointed Person concluded that the applications had been made in bad faith under Section 3(6) and that the appeal should succeed.

Section 60 not considered in detail but the Appointed Person noted that the evidence was lacking in certain respects.