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Trade mark decision

BL Number
O/153/04
Decision date
2 June 2004
Hearing officer
Mr M Reynolds
Mark
Q Qtech
Classes
09, 37
Applicant
Quantum Microponents Ltd
Opponent
Q-Tech Limited
Opposition
Section 5(2)(b)

Result

Section 5(2)(b): - Opposition successful.

Points Of Interest

  • 1. Honest concurrent use.
  • 2. Validity of registration; not challengeable in an opposition action.

Summary

The opponents were proprietors of a registration of the mark, QTECH, in Classes 9, 35 and 42. The applicants mark had been accepted on the basis of honest concurrent use. In their counterstatement the applicants had questioned the bona fides of the opponents in adopting ‘their’ mark, and they maintained their defence of honest concurrent use (Section 7(1)).

The Hearing Officer dealt first with the question of the similarities of the marks and the goods and services. The goods were identical, he decided and the services similar “to a reasonably high degree”. After a detailed comparison of the marks the Hearing Officer found a strong likelihood of confusion.

There was a dispute over the original ownership and first use of the mark, but the Hearing Officer ruled that it was not open to him to resolve such a matter as part of an opposition action. The opponents’ registration had to be presumed valid by the terms of Section 72 and no invalidity action had been launched nor stay of proceedings sought, pending the outcome of such an action.

The Hearing Officer therefore turned to consider the matter of honest concurrent use. Having examined the evidence, however, he concluded that there was nothing to confirm that the respective marks, goods/services had co-existed in circumstances which would displace his own finding of a likelihood of confusion. The opposition succeeded accordingly.

Full decision O/153/04 PDF document66Kb