Trade mark decision

BL Number

O/236/08

Decision date

11 August 2008

Hearing officer

Professor Ruth Annand

Mark

PYROGEN

Classes

09

Applicant

Alien Systems & Technologies (Proprietary) Limited

Opponent

Pyrogen Technologies Sdn Bhd

Opposition

Sections 3(6), 5(4)(a), 56 & 60

Result

Section 3(6): Appeal dismissed. Section 60: Appeal dismissed.

Points Of Interest

• 1. See also decision dated 30 October 2007 (BL O/316/07).
• 2. The Appointed Person asked for submissions on whether the words “agent or representative of a person who is the proprietor of the mark” in Section 60 were wide enough to include a sub-distributor as in the present case. In the event the Appointed Person made no decision on the matter because she confirmed that the Hearing Officer was correct to treat Pyrogen Ltd and the opponent as one entity. (Paragraph 44).

Summary

This appeal related to the grounds under Sections 3(6) & 60.

The first ground of appeal was a claim by the applicant that the Hearing Officer had not properly considered whether or not the evidence established that the applicant was an agent or representative of the opponent. The Appointed Person noted that the Hearing Officer had dealt with this point in his decision and there was other evidence not mentioned by the Hearing Officer. Appeal dismissed.

The second ground was on the basis that even if the applicant was an agent or representative, this was of Pyrogen Ltd and not the opponent.

At the time of the agreement between the parties Pyrogen Ltd was a wholly owned subsidiary of the opponent. The Appointed Person considered that the Hearing Officer was right to treat Pyrogen Ltd and the opponent as one company for the purposes of Section 60. Appeal dismissed.

The third ground of appeal related to the fact that at the time of the application Pyrogen Ltd was in liquidation and this gave the applicant a defence. The Appointed Person noted that the applicant had not put forward a justification under Section 60(5) in its defence and counterstatement and secondly that the applicant had not proved that the opponent had abandoned its mark by the time the application was filed. Indeed the evidence showed that this was not the case. Appeal dismissed.

The fourth and final ground of appeal related to the ground under Section 3(6). In effect the applicant claimed that insufficient weight had been given to its belief that the mark in suit had been abandoned by the opponent. The Appointed Person found little substance in this ground of appeal because the evidence showed that the opponent continue to trade and continued to have a web site. Appeal dismissed.