Trade mark decision

BL Number

O/127/08

Decision date

1 May 2008

Hearing Officer

Mr M Foley

Mark

FLY FIRST

Classes

16, 36, 39

Applicants

Fly First Plc

Opponents

British Airways Plc

Opposition

Sections 3(1)(a); 3(1)(b); 3(1)(c); 3(1)(d) & 3(3)(b)

Result

Section 3(1): Opposition successful in part.

Points Of Interest

• Section 3(1)(c); marks consisting of obvious abbreviation of wholly descriptive terms.

Summary

The Hearing Officer quickly dismissed the objection based on Section 3(1)(a); opposition on that ground would have to show that a mark was not merely devoid of distinctive character but also incapable of becoming distinctive by reason of use. This was not such a mark.

Turning next to the objection under Section 3(1)(d) THE Hearing Officer noted that there was no evidence that the term FLY FIRST was customary in the common parlance or practices of the trade, even though the individual elements were. This ground too was dismissed.

The Hearing Officer, however, was persuaded that the term FLY FIRST was no more than an obvious abbreviation of the term FLY FIRST CLASS. As such it was incapable of “designating goods and services that relate to first class air travel”. It was therefore excluded from registration by the terms of Section 3(1)(c) and was also devoid of the character necessary to distinguish in the terms of Section 3(1)(b). These objections therefore succeeded.

The capacity for deception (3(3)(b)) was, in view of the process of booking air travel, purely theoretical.

Having reviewed the specification and removed all the objectionable items and services the Hearing Officer concluded that each side had had a measure of success. He therefore made no order as to costs.

Full decision O/127/08 49Kb