Trade mark decision
- BL Number
- O/027/02
- Decision date
- 14 January 2002
- Hearing Officer
- Mr M Reynolds
- Mark
- LAZAPELL
- Classes
- 13
- Registered Proprietor
- Naurus (Pvt.) Limited
- Applicants for Invalidation
- Product Suppliers AG
- Application for Declaration of Invalidity
- Sections47(1)(d); 47(2)(a) & 47(2)(b)
Result
Section 47(1)(d) (Section 3(6)) - Application for declaration of invalidity failed
Section 47(2)(a) (Section 5(2)(b)) - Application for declaration of invalidity failed
Section 47(2)(b) (Section 5(4)(a)) - Application for declaration of invalidity failed
Points Of Interest
- 1. Family of marks :consideration under Section 5(2)(b) cannot include unregistered marks.
- 2. Comparison of the marks LAZAPELL v ACCUPELL, MATCHPELL, POWAPELL.
Summary
The applicants were the registered proprietors of three marks in Class 13, ACCUPELL, MATCHPELL and POWAPELL and used other ‘-PELL’ marks; The grounds for invalidation were said to arise under Sections 3(6); 5(2)(b) and 5(4)(a). Under Section 5(2)(b) the Hearing Officer had first to consider the applicants’ claim to a ‘family of marks’. Under this head, he considered only the registered marks, since to consider also the unregistered marks would be an elision of earlier trade marks and earlier (common law) rights; he could see no basis in law for such an approach. As regards the registered marks the Hearing officer could not find from the evidence of their use that there existed a ‘family’ of marks at the material date. He therefore went on to consider the Section 5(2)(b) objection on a mark by mark basis. The goods were identical . Taking each of the marks in turn, however, he concluded that there did not exist a likelihood of confusion and the Section 5(2)(b) objection failed accordingly. Under Section 5(4)(a) the Hearing Officer again noted that the evidence did not enable him to decide which marks had been used, from what dates and to what extent. The claim to goodwill could not be substantiated and this ground failed also. The Section 3(6) also failed on both the legs on which it had been brought.
Full decision O/027/02 
26Kb
