Trade mark decision

BL Number
O/038/05
Decision date
9 February 2005
Hearing Officer
Mr G Salthouse
Mark
3D SHAPE MARK
Classes
03, 05
Applicant
Henkel Kommanditgesellschaft Auf Aktien (Societe De Droit Allemand)
Opponent
Unilever Plc
Opposition
Sections 3(1)(b) & Sections 3(6) & 32(3)

Result

Section 3(1)(b) - Opposition successful.

Section 3(1)(d) - Opposition failed.

Section 3(b) & 32(3) - Opposition failed.

Points Of Interest

  • 1. None

Summary

The opponent filed evidence to show that similar shaped goods are sold in the household cleaning sector and that representations of such goods are displayed on packaging. The colours red, white, blue and green are widely used colours in this area of trade. The opponent claimed to have used the colours red, white and green in relation to its PERSIL biological product and red, white and blue in relation to its non-biological product. Examples of various products were provided.

The applicant disputed the opponent's claim to the extent that its mark was a three-layered colour mark whereas all the other products referred to were only two-layered. The opponent believed that the red element in its mark made the mark distinctive. Similar products to the mark in suit are sold in the UK under the mark GLIST.

The Hearing Officer first considered the mark under Section 3(1)(b), bearing in mind that no evidence of use had been filed in support of the application. In his view the totality of the various elements of the mark failed to create a distinctive mark and thus this ground of opposition succeeded.

Under Section 3(1)(d) the Hearing Officer took account of the combination of colours in a particular pattern on a particular shape. He did not think it could be said that this was a normal way of describing the goods at issue and thus he believed the public could be educated to recognise it as a trade mark. Opposition failed on this ground.

The ground of opposition under Sections 3(6) and 32(3) also failed since the opponent had filed insufficient evidence to support its claim that the applicant did not intend to use the mark in suit in respect of all the goods listed in its specifications. In any case the applicant had disputed the opponent's claim and stated that it intended to use its mark in the UK.

Full decision O/038/05 PDF document54Kb