Trade mark decision

BL Number

O/372/02

Decision date

23 August 2002

Appointed Person

Professor Ruth Annand

Mark

TC TIMESHARE COUNCIL

Classes

16, 35, 36, 41, 42

Applicant

Timeshare Council

Opponent

Timeshare Council SL

Opposition

Sections 3(6) & 5(4)(a). Request to file additional evidence on appeal.

Result

Request to file additional evidence: - Request refused.

Points Of Interest

• 1. See Hearing Officer's decision dated 17 September 2001 (BL O/406/01).
• 2. The Registrar made the point that the Appointed Person needed to exercise care in any exercise of discretion to admit further evidence on appeal since, in most cases, the Appointed Person's decision would be final. Appointed Person accepted this point but felt that if the relevant principles were considered then the Appointed Person could allow the admittance of further evidence on appeal. In addition there was the option of referring an appeal to the court.
• 3. The opponents made an application for Invalidation in 2003. In his decision dated 19 December 2003 (BL O/396/03) the Registrar ruled that the application was Res Judicata and dismissed it.

Summary

The opponents appealed the Hearing Officer's decision of 17 September 2001 (BL O/406/01) and subsequently made an application for the admittance of further evidence to buttress their ground under Section 5(4)(a).

The Appointed Person reviewed the evidence sought to be admitted and considered the principles to be applied in exercising discretion in relation to such a request. Having considered the matter the Appointed Person refused the application to introduce further evidence on appeal, for the following reasons:

1. The additional evidence was available at the evidence stage in the proceedings and could have been filed for consideration by the Hearing Officer.

2. The opponents had changed professional advisors and a claim was made that the opponents had been advised by their previous agents not to file the evidence now to hand. The Appointed Person was not convinced that the documents and letters filed by the opponents supported their claim.

3. It was not clear that the additional evidence would influence the result of the proceedings.

4. There were inconsistencies in the evidence sought to be adduced.

5. The admittance of further evidence would further delay to the applicants' application which has been on file for some five years.

Full decision O/372/02 42Kb