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Trade mark decision

BL Number
O/094/04
Decision date
31 March 2004
Hearing officer
Mr M Reynolds
Mark
STRAIGHT EIGHT
Classes
33
Applicant for Revocation
Stichting Lodestar
Registered Proprietor
Brothers Drinks Co Limited
Revocation
Section 46(1)(b)

Result

Section 46(1)(b) - Application essentially successful. Specification of mark in suit reduced to 'perry'.

Points Of Interest

  • 1. A very unusual trading arrangement and caused the Hearing Officer to think carefully before deciding that use was genuine.

Summary

The mark in suit was applied for on 24 May 1996 and registered on 14 February 1997. The application for revocation was made on 20 May 2002 and the Hearing Officer concluded from the papers before him that the relevant five year period ran from 20 May 1997 to 19 May 2002.

The registered proprietors admitted that their mark had only been used in respect of "Perry". The product was first launched in 1993 but was not very successful from a commercial standpoint and the company did not proceed with this product by way of general sales. However, the Straight Eight and numeral 8 perry continued to be sold each year at the Glastonbury festival which extends over three days. Sales were said to be of the order of £20,000 per annum. The registered mark was advertised on price lists; an illustrated advertisement sign and on a promotional clock but the perry itself was sold in paper/plastic cups and there was no direct use of the mark in association with the goods.

The Hearing Officer carefully considered this rather strange trading arrangement and concluded that there was genuine use of the mark in suit in relation to 'perr'. The specification of the registered mark was restricted to 'perry' and the applicants awarded costs.

The registered proprietors had argued that as all alcoholic goods were similar goods, they should be allowed to retain their existing specification of ‘alcoholic beverages’. The Hearing Officer indicated that the test envisaged by the registered proprietors was not the proper test and their request to retain a wide specification was unrealistic.

Full decision O/094/04 PDF document68Kb