Trade mark decision
- BL Number
- O/094/05
- Decision date
- 8 April 2005
- Hearing Officer
- Mr D Landau
- Mark
- Dual
- Classes
- 09
- Applicant for Invalidity
- Craig Jameson Baillie, Stephen Lambert & DualGlo Limited
- Registered Proprietor
- Karstadt Quelle Aktiengesellschaft
- Invalidity
- Section 47(1) based on Section 3(1)(d)
Result
Section 42(1) based on Section 3(1)(d): - Application for invalidation failed.
Points Of Interest
- 1. A useful summary regarding the relevant date in invalidation actions.
Summary
.The applicant for invalidation claimed that the word DUAL is descriptive of loudspeakers sold with record players, tape recorders, sound amplifiers etc or such apparatus containing loudspeakers. It thus requested invalidation within the terms of Sections 47(1) and 3(1)(d) of the Trade Mark Act 1994.
At the Hearing the applicant submitted that the relevant date could be any date at which a registered mark fell foul of the provisions of Article 3.1(d) but the Hearing Officer pointed out that in invalidation proceedings it was well settled that the relevant date was the date of application for registration of the mark in suit. He went on to give a full explanation for this view and reinforced his explanation from relevant High Court decisions.
In the present case the mark in suit had been registered under the provision of Section 18 of the Trade Marks Act 1938 which meant that the proprietor had filed evidence of use to show that the mark in suit had acquired distinctiveness at that date of application for registration. As the applicant for invalidation had been unclear as regards the relevant date the Hearing Officer noted that, with the exception of one exhibit MSD3, all of the evidence showing descriptive use of the word DUAL was dated 2004. The exhibit MSD3 showed use of the word DUAL but even that use was ambiguous since the word DUAL was always shown in title case. In any case this evidence was totally insufficient to discharge the onus required by Section 3(1)(d); also in this case the applicant had to show that the mark in suit had not acquired a distinctive character through the use made of it prior to application. The ground of invalidation must, therefore, fail.
Full decision O/094/05 
40Kb
