Trade mark decision

BL Number

O/134/07

Decision date

17 May 2007

Hearing officer

Mr M Reynolds

Mark

VIRT-X VIRTX (2 seperate marks)

Classes

09

Applicant for Invalidity

Oxford Virtual Markets Ltd & Advanced Transaction Systems Ltd (Jointly)

Registered Proprietor

Virt-X Exchange Limited

Invalidity

Interlocutory Hearing re the filing of evidence concerning private discussions between the parties

Result

Filing of evidence about “without prejudice” discussions: Evidence excluded from proceedings.

Points Of Interest

• None

Summary

One of the applicant’s declarants included in his declaration a paragraph relating to discussions between the parties. The registered proprietor objected and despite the applicant’s offer to remove the offending paragraph, indicated that it proposed to file evidence abut negotiations and this it duly did. The applicant objected and requested a hearing.

Following the hearing the Hearing Office wrote to the parties to say that the offending paragraph should be removed from the applicant’s evidence and that the further evidence filed by the registered proprietor should not be admitted into the proceedings.

The Hearing Officer was asked for written grounds and these form the basis of this decision. The Hearing Officer considered the filing of late evidence in the light of guidance set down in SWISS MISS and LADD v MARSHALL and noted that the evidence filed by the registered proprietor went much wider than the matter contained in the applicant’s evidence. Nor did the fact that the Registry allowed time for the late evidence to be filed impact on the decision which had to be made. Decision as set out in Hearing Officer’s letter confirmed because the Hearing Officer was of the view that the late evidence was not totally relevant, the reason for the late filing was not fully explained and its form meant that cross-examination would not be possible.