Trade mark decision

BL Number
O/129/03
Decision date
9 May 2003
Hearing Officer
Mr O Morris
Mark
VEXELL
Classes
05, 10, 42
Registered Proprietor
Bio Vex Ltd
Applicants for a declaration of Invalidity
SmithKline Beecham Plc
Application for Invalidation
Sections 47(2)(a) (5(2)(b))

Result

Application for invalidation, Section 47(2)(a), successful.

Points Of Interest

  • None

Summary

The applicants alleged that the mark had been registered in breach of Section 5(2), which their own mark, VIXSEL, should have prevented. The registration was not defended, no counterstatement was filed. Nevertheless, the statutory presumption of validity did not allow for any summary removal of the registration. The Hearing Officer therefore went on to consider the case under Section 5(2)(b). Comparing the marks he noted a high degree of visual similarity and a high degree of aural similarity. The conceptual similarity, he felt, was not particularly high.

No evidence or submissions having been filed the Hearing Officer was left to make his own assessment as to the similarity of the goods/services. The Class 5 goods, he thought, were similar; the Class 10 goods likewise, but less so. There was, too, a degree of similarity in the case of the Class 42 services specified. Taking all relevant factors into account he felt there was a likelihood of confusion and the application succeeded accordingly.

Full decision O/129/03 PDF document36Kb