Trade mark decision

BL Number

O/315/00

Decision date

23 August 2000

Hearing Officer

Mr G Salthouse

Mark

BENZ BOOM ROCK SOUL AND DEVICE

Classes

42

Applicants

Paul Neville Hendricks

Opponents

DaimlerChrysler AG

Opposition

Sections 3(3) & 3(6) (both withdrawn at the hearing), 5(2)(b), 5(3), 5(4)(a) and Paris Convention Article 6 bis (withdrawn at the hearing)

Result

Opposition failed on all grounds.

Points Of Interest

• "It is not appropriate to skew the test of the ‘average consumer’ (Lloyd Schuhfabrik Meyer & Co [1999] ETMR 690) in favour of a notional person ..... unless there is evidence that such a person is likely to be the average consumer."

Summary

The opponents are proprietors of the marks MERCEDES-BENZ & DAIMLER BENZ used in respect of a wide range of goods and services. It was common ground that the opponents have registrations which cover goods, similar if not identical, to some of the goods in the application for registration in Classes 9, 18 & 25. The application did not however accept that the services in Class 41 were similar to those provided by the opponents. The Hearing Officer also noted that certain elements of the opponents registration are subject to restrictions under Section 5(2)(b). The Hearing Officer found that the marks were not sufficiently similar as to give rise to a likelihood of confusion in respect of identical or similar goods (and therefore not likely to cause confusion in respect of goods not identical or similar, under Section 5(3)). The evidence provided by the opponents did not substantiate their claims under Section 5(4).

Full decision O/315/00 47Kb