Trade mark decision

BL Number
Decision date
7 April 2003
Appointed Person
Professor Ruth Annand
16, 28, 35, 37, 41, 42
Applicant for Rectification
Farel Bradbury
Registered Proprietor
John De Vere
Sections 60 & 64


Section 60 - Appeal allowed.

Section 64 - Not considered.

Points Of Interest


In his decision dated 29 August 2002 (BL O/358/02) the Hearing Officer refused the applicant’s request to be entered in the Register as proprietor. The applicant appealed to the Appointed Person.

At the outset the Appointed Person said that the Hearing Officer had failed to keep the requirements of Section 60(1)(a) & (b) in mind when deciding the applications for rectification under Section 60(3)(b). He had, therefore, misinterpreted the evidence and glossed over facts which were clearly identified in the evidence. She thus proceeded on the basis of a re-hearing rather than a review.

The Appointed Person noted that the registered proprietor John De Vere was also known as John Sale (JS). The applications for rectification were filed by Farel Bradbury (FB) who invented a reduced area 18-hole golf course for which patent protection was first sought in 1991.

Farel Bradbury met John Sale who was interested in commercially exploiting Farel Bradbury’s idea in 1992. Discussions and negotiations occurred between the parties and a number of different names were used such as HYDATUM GOLF, HYDATUM GOLF COURT, HYDATUM-ELECTRA etc and John Sale claimed that the trade mark significance of GOLF COURTS was only recognised when he met a copywriter in January 1993. Therefore John Sale claimed that it was he who identified GOLF COURTS as a trade mark and Farel Bradbury had no rights to ownership of it.

Later in developing the concept a company called Golf Courts International Limited was set up about 1993 and the trade marks were to be assigned but this did not happen. In the meantime Farel Bradbury trading as Hydatum Design independently produced a brochure employing the GOLF COURTS word mark. The Appointed Person noted from the evidence that John Sale in a letter to his solicitor in October 1996 acknowledged that all intellectual property rights remained with Farel Bradbury.

During 1995/6 John Sale was appointed to negotiate on behalf of Farel Bradbury in relation to his intellectual property rights and in April 1996 agreement was reached with Golf Courts Ltd (John Sale’s Company) that it be appointed as licensees by Farel Bradbury but in the event the agreement was not signed.

A second agreement was reached with Golf Courts Incorporated (John Sale’s Company) and it was appointed as a licensee by Farel Bradbury. The Agreement provided that on termination all intellectual property rights returned to the Grantor (Farel Bradbury). The Appointed Person considered these Agreements to be of value, as distinct from the Hearing Officer, even though they did not mention the marks by name.

In 1997 Farel Bradbury claimed the GOLF COURT concept was launched in Ireland with the involvement of Golf Courts Incorporated. Farel Bradbury’s claim to ownership of the registered mark was refused by the Hearing Officer as he had not detailed the relevant trade mark law in Ireland but the Appointed Person said this was not necessary and letters from Irish trade mark agents about the application of common law in Ireland was something the Hearing Officer could have taken judicial notice of. The common law rules as to proprietorship establish that he who first uses a mark is the owner of that mark. The second point was the fact that Golf Courts Incorporated had been involved with the launch rather than Farel Bradbury personally. However, there were agreements between Farel Bradbury and Golf Courts Incorporated and the Appointed Person was of the view that any use by Golf Courts Incorporated and/or Golf Courts Limited ensured to the benefit of Farel Bradbury.

Taking an overall view of the matter the Appointed Person was satisfied that Farel Bradbury was the rightful proprietor of the marks in suit and ordered that his name be entered in the Register as proprietor.

In view of her decision under Section 60, the appeal as regards Section 64 was not considered. However, the Appointed Person concurred with the Hearing Officer’s view that Section 64 was not appropriate in this case.

Full decision O/111/03 PDF document79Kb