Trade mark decision

BL Number
O/040/07
Decision date
2 February 2007
Hearing Officer
Mr M Foley
Mark
TOP HOME (stylised)
Classes
34
Applicant
Quelle Aktiengesellschaft
Opponent
Republic Technologies (NA) LLC
Opposition
Sections 5(2)(b) & 5(4)(a)

Result

Section 5(2)(b): Opposition failed. Section 5(4)(a): Opposition failed.

Points Of Interest

  • The opponent appealed to the Appointed Person. In his decision dated 3 September 2007 (BL O/254/07) the Appointed Person upheld the Hearing Officer's decision and dismissed the appeal.

Summary

This opposition relates only to Class 34 and the opponent relies on a Community Trade Mark registration of the mark TOP (slightly stylised) in Class 34 in respect of identical and similar goods as those of the applicant.

The opponent also filed, as evidence, information from the internet to show that there was some connection between the word TOP and themselves but it filed no evidence of actual use of its mark. Consequently the ground under Section 5(4)(a) fell away.

Under Section 5(2)(b) the Hearing Officer compared the respective marks. In doing so he noted that while the opponent’s mark TOP is subsumed within the applicant’s mark, it is a laudatory and descriptive term. It has therefore a low degree of distinctiveness. In any case the respective marks differ visually, orally and conceptually and the Hearing Officer concluded that they were not similar. Opposition failed on this ground.

Full decision O/040/07 PDF document145Kb