Trade mark decision

BL Number
O/085/98
Decision date
31 March 1998
Hearing Officer
Mr M Knight
Mark
FRUITCAKE & DEVICE
Classes
25
Applicant
Fruitcake Limited
Opponent
Fruit of the Loom Inc
Opposition
Sections 5(2)(b) & 5(4)(a)

Result

Section 5(2)(b) - Opposition successful.

Section 5(4)(a) - Opposition successful.

Points Of Interest

  • By the time of the hearing the applicants were in bankruptcy. They neither filed evidence nor were they represented at the hearing.

Summary

The opponents opposition was based on their ownership of registrations of a number of marks in Class 25 such as FRUIT BRAND, FRUIT OF THE LOOM in respect of the same goods as those of the applicant. They also filed extensive evidence of use of their FRUIT OF THE LOOM mark and evidence from trade sources to confirm that in practice their mark is often shortened to FRUIT. Indeed the company and its products are referred to in that way by customers and employees. They also referred to other proceedings where they were successful in opposing marks containing the word FRUIT.

Under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the respective marks. In doing so he took account of the evidence which confirmed that the word FRUIT was synonymous with the opponents. Thus the Hearing Officer concluded that the opponents’ FRUIT and FRUIT BRAND marks were very similar to the applicants FRUITCAKE mark and similar to the FRUITCAKE and device mark. He also considered the opponents’ FRUIT OF THE LOOM marks to be similar to the applicants’ marks. Taking account of imperfect recollection the Hearing Officer concluded that the opponents were successful in this ground of their opposition.

In relation to the Section 5(4)(a) ground - Passing Off - the Hearing Officer was satisfied that the opponents had established a reputation and goodwill in their trade marks and as the goods were identical and the marks similar there was a likelihood of damage to the opponents if the applicants used their marks. The opponents also succeeded on this ground.

Full decision O/085/98 PDF document51Kb