Trade mark decision

BL Number

O/128/08

Decision date

1 May 2008

Hearing officer

Mr D Landau

Mark

GREEN POINT ZD

Classes

33

Applicant

Domaine Chandon Australia Pty Ltd

Opponent

ZD Wines LLC

Opposition

Sections 5(2)(b) & 56

Result

Section 5(2)(b): Opposition successful. Section 56 Ground dismissed.

Points Of Interest

• Some modest concurrent use but not a relevant factor as regards the Hearing Officer’s decision.

Summary

The Section 56 ground was dismissed by the Hearing Officer as he considered it ill-judged in the light of the fact that the opponent had its mark registered in the UK. The claim would not add anything additional to the ground under Section 5(2)(b).

The opponent relies upon ownership of the mark ZD in this opposition and filed evidence in support of its case. This evidence was general in nature and was not supported by turnover figures and advertising expenditure. The Hearing Officer accepted that the mark had been used in relation to wines in the UK but did not consider that the distinctiveness of the ZD mark had been enhanced.

The applicant also filed evidence of modest use, over a short period, of its mark in relation to sparkling wines and indicated that ZD in its mark indicated “zero dosage” which means no sugar has been added in the topping-up process.

Under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue so the outcome rested on a comparison of the respective marks ZD and GREEN POINT ZD. In comparing the marks the Hearing Officer decided that the mark ZD was a distinctive mark sand noted that there was no evidence to indicate that the general public would recognise it as meaning “zero dosage”. Overall the Hearing Officer concluded that the public would not fail to notice the ZD element in the applicant’s mark and even if they did not confuse the respective marks they could well assume that goods sold under the respective marks came from economically linked undertakings. Opposition thus succeeded.