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Trade mark decision

BL Number
O/139/04
Decision date
18 May 2004
Hearing officer
Mr G Salthouse
Mark
CLEAN CREAM
Classes
03
Applicants
Avon Cosmetics Limited
Opponents
Johnson v Johnson
Opposition
Sections 3(1)(b) & 3(1)(c)* (*Sections 3(1)(a) & 3(1)(d) were cited in the pleadings but withdrawn in the written submissions)

Result

Section 3(1)(b): - Opposition failed.

Section 3(1)(c): - Opposition failed.

Points Of Interest

  • Section 3(1)(b): CLEAN CREAM are standard English words but are “a syntactically unusual juxtaposition of those words.”

Summary

The opponent gave a number of examples (gleaned from the internet) which, they claimed, showed that the words CLEAN CREAM were in common usage in relation to Class 3 products and which showed that the mark in suit was “a descriptive designation in relation to the products of interest”. Among these examples were; NEUTROGENA Deep Clean Cream Cleanser; Deep Clean Cream Wash; ELCO Cooktop Clean Cream etc.

The Hearing Officer dealt first with the objection under Section 3(1)(c). After a review of the relevant authorities he concluded that “only if the mark is no different from the usual way of designating the relevant goods/services or their characteristics (could) it be debarred from registration”. With this in mind he examined the examples provided by the opponent and noted that only three had the words “Clean” and “Cream” in the same order as the mark in suit. These were “Neutrogena Deep Clean Cream Cleanser”, “Amaranth Clate’ Poser Clean Massage Cream” and “Elco Cooktop Clean Cream”; he distinguished each of these in turn from the mark in suit and whilst noting that Section 3(1)(c) also excluded descriptions which were not in common usage at the date of registration but where it was reasonably foreseeable that they would come into descriptive use, he did not believe that the mark fell into that category. The ground of opposition under Section 3(1)(c) failed accordingly.

Having made an analysis of the matter under Section 3(1)(b) the Hearing Officer concluded that whilst the mark consisted of two standard English words, it exhibited “a syntactically unusual juxtaposition of these words”. He had no difficulty in finding that the mark was not devoid of any distinctive character in relation to the goods. This ground failed also.

Full decision O/139/04 PDF document29Kb