Trade mark decision

BL Number

O/194/07

Decision date

12 July 2007

Hearing officer

Mr C Bowen

Mark

VODKA O2 RUSH VODKA O2 PREMIUM SPARKLING VODKA

Classes

33

Applicant for Invalidity

O2 Limited

Registered Proprietor

Philip Maitland

Invalidity

1. Section 47(2) based on Sections 5(2)(b), 5(3) & 5(4)(a) 2. Interlocutory Hearing re extension of time request and to set aside earlier decision.

Result

Request for late extension of time: Request refused. Request that decision of 11 May 2006 be set aside: Request refused.

Points Of Interest

• 1. See Hearing Officer’s decision dated 11 May 2006 (BL O/122/06).
• 2. See Hearing Officer’s decision dated 4 January 2007 (BL O/003/07).
• 3. The registered proprietor appealed to the Appointed Person. In her decision dated 2 April 2008 the Appointed Person upheld the Hearing Officer's decision and dismissed the appeal.

Summary

Following the filing of invalidity proceedings the registered proprietor did not respond or file a counterstatement. The invalidity application was allowed in the Registrar’s decision dated 11 May 2006 (BL O/122/06).

Outside the period for lodging an appeal the Registered Proprietor contacted the Registry to say that there had been an error in procedure due to the fact that there had been a change of address and it had not received the relevant documentation. Following an interlocutory hearing the Registrar refused to re-open proceedings and refused to set aside the decision of 11 May 2006. Decision dated 4 January 2007 (BL O/203/07).

In February 2007 the registered proprietor’s new legal representatives sought examination of the Registry file relating to the above proceedings and subsequently filed a request for a back dated extension of time so that the registered proprietor could appeal the decision of 11 May 2006. They also asked that the decision be set aside because of an irregularity in procedure in that the registered proprietor had not been advised of his right to make submissions and/or request a hearing. Following an interlocutory hearing the Hearing Officer found as follows:

1. The Registrar was not functus in respect of Mr Maitland’s request for an extension of time.

2. The request for the extension of time was refused because of the delay in making the request and because it would not have been just and equitable to exercise the registrar’s discretion in Mr Maitland’s favour.

3. While there were procedural irregularities in relation to the proceedings they were not material in their effect and thus it was not appropriate to set aside the decision of 11 May 2007.

4. The applicant was entitled to an award of costs.