Trade mark decision

BL Number

O/204/08

Decision date

16 July 2008

Hearing officer

Mrs A Corbett

Mark

TUSHIES

Classes

03

Applicant for Invalidity

Green Baby Limited

Registered Proprietor

Imran Hussain, Rizwana Hussain, Maariah Hussain, Danyaal Hussain & Zahra Hussain

Invalidation

1. Section 47 2. Interlocutory Hearing to decide on a request to strike out certain evidence in reply and to consider a request by the applicant to file additional evidence.

Result

Interlocutory hearing (a) Certain evidence in reply “struck out” (b) Late evidence admitted into proceedings.

Points Of Interest

• As detailed.

Summary

In these proceedings and following the completion of the evidence rounds, the registered proprietor objected to certain evidence contained within the applicant’s “strictly in reply” evidence and asked that it be “struck out”. At the same time a request was made by the applicant to have a further witness statement accepted into the proceedings under the provisions of Rule 33A(6).

The Hearing Officer had the benefit of submissions from Counsel for both sides at the hearing. She carefully reviewed the registered proprietor’s evidence in chief and the objected to paragraph in the evidence in reply. As it was clear that the statement made in the “evidence in reply” had no relevance to these proceedings and did not reply to any point made by the registered proprietor, the Hearing Officer ordered that it be “struck out” from the evidence in reply.

As regards the acceptance of late evidence under Rule 33A(6) the Hearing Officer accepted some of this evidence was available and could have bee filed earlier. However, she accepted the applicant’s submissions that in the context of the proceedings it was important to file third party evidence as to how the registered mark was viewed in the marketplace. Overall the Hearing Officer decided that the additional evidence could well assist in deciding the dispute and she admitted it into the proceedings.