Trade mark decision

BL Number
Decision date
8 April 2008
Hearing Officer
Mr G Salthouse
Applicant for Revocation
Aikman & Associates
Registered Proprietor
Apple Inc
Section 46(1)(b)


Section 46(1)(b): Application for revocation failed.

Points Of Interest

  • The applicant for revocation appealed to the Appointed Person. In her decision dated 10 November 2008 (BL O/306/08) the Appointed Person disagreed with some of the Hearing Officer's reasoning but went on to uphold his decision and dismiss the appeal.


The applicant for revocation claimed non-use of the marks in suit during the five year period 7 November 2001 - 6 November 2006.

The registered proprietor stated in its evidence that it acquired the marks in suit on 20 October 2006 and that they were immediately put back into use. The mark TIME MACHINE is used in relation to a date backup and restoration software tool which is part of the proprietor’s new operating system, Mac OS x “Leopard” for its Apple computers.

As regards use of the marks in suit the proprietor relies upon the establishment of a new website about the Mac OS x Leopard system which highlights the TIME MACHINE software. It claims 424,500 page views by 241,699 UK visitors during the period 20 October 2006 to 6 November 2006. Secondly, the proprietor states that the Leopard Early Start Kit was made available to software developers on 23 October 2006 and by 15 December 2006 one hundred and thirteen copies were sold in the UK.

The applicant for revocation did not challenge the proprietor’s evidence directly but sought to case doubt on the internet “hits” by claiming that searchers on the internet can often visit sites inadvertently when attempting to view pages of interest.

The Hearing Officer noted that the website established by the proprietor had been specifically aimed at its new operating system. He, therefore, did not accept the view of the applicant as regards inadvertent visits. He thought the visits would be the result of genuine searches. He thought, on the balance of probability, that the majority of the sales of the Early Starter Kit would have occurred before 6 November 2006 and thus within the relevant five year period. Application for revocation refused.

Full decision O/100/08 PDF document33Kb