Trade mark decision

BL Number
O/060/05
Decision date
8 March 2005
Hearing Officer
Mr C Bowen
Mark
ALTITUDE
Classes
25
Applicant
Hi-Tec Sports Plc
Opponent
Altitude Properties
Opposition
Section 46(1)(a) & (b) : Interlocutory Hearing

Result

Interlocutory Hearing re the filing of evidence in proper form and within time. - Evidence not accepted into the proceedings and no extension of time allowed. Revocation granted.

Points Of Interest

  • 1. This case highlights the importance of filing evidence within time and in proper form.

Summary

These proceedings related to two registrations for the mark ALTITUDE in Class 25. The marks were applied for on 12 September 1997 and 11 June 1998 and registered on 22 May 1998 and 11 December 1998. The application for revocation was filed on 28 July 2004 and related to the five year periods following registration and the five year periods prior to 1 March 2004.

A copy of the application was sent to the registered proprietor on 2 August 2004 and a period of time to 2 November 2004 was allowed for the registered proprietor to file TM8, Counterstatements and evidence of use of its marks. On 12 October 2004 Industrial and Commercial Consultancy Limited acting as agents for the registered proprietor filed forms TM8 and Counterstatements together with copy invoices, a garment insert, examples of garment labels/badges, a sample garment, a catalogue and photographs showing an exhibition stand. The Registry wrote on 14 October 2004 to say that the evidence of use had not been filed in proper form i.e. a Witness Statement, Affidavit or Statutory Declaration with exhibits. A period was allowed to 28 October 2004 to request an interlocutory hearing. On 25 October Marks & Clerk filed form TM33 to appoint themselves as agents and requested a hearing.

Only the registered proprietor's representative attended the hearing. After considering the submissions made the Hearing Officer decided that as the evidence filed was not in proper form it could not be accepted into the proceedings, and no extension of the period for filing evidence could be granted. The application for revocation would therefore be treated as unopposed and granted in full. Subsequently, the registered proprietor asked for written grounds of the decision.

In his written decision the Hearing Officer carefully considered the terms of the various Rules and Sections of the Act and confirmed his decision. In particular he also considered the matter of discretion in the context of Rule 31(3) and decided that this was not a case where the Registrar could exercise his discretion in favour of the registered proprietor. Costs also awarded to the applicant for revocation.

Full decision O/060/05 PDF document33Kb