For the whole decision click here: o32607
Result
Sections 5(1) & 5(2)(a): Opposition dismissed. Section 5(2)(b): Opposition successful. Section 5(3): Opposition dismissed. Section 5(4)(a): Opposition failed.
Points Of Interest
Summary
The opponent’s opposition started off with five earlier Community trade marks registrations in Class 25 but two required proof of use and as this was not filed, they fell away. With regard to the remaining registrations the Hearing Officer determined that they were not identical to the mark in suit so the grounds under Sections 5(1) & 5(2)(a) were dismissed. The ground under Section 5(3) was also dismissed because the opponent filed only evidence of use in the UK and not The European Community as required.
As regards the passing off ground, Section 5(4)(a) the Hearing Officer noted that the opponent’s evidence related to only one of the three marks relied upon and it was very weak. The Hearing Officer did not consider it sufficient to prove a goodwill and reputation at the relevant date and dismissed this ground of opposition.
Under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the mark in suit with the mark he considered represented the opponent’s best case, two chevrons pointing left to right. Essentially this mark is included as an element of the mark in suit and the Hearing Officer considered the respective marks to be similar. He went on to find that there was a likelihood of confusion and that opposition succeeded on this ground.