Trade mark decision

BL Number
Decision date
19 May 1999
Hearing Officer
Mr M Reynolds
18, 25
Registered Proprietor
Millet SA
Applicants for Revocation
Millets Leisure Limited
Application for Revocation
Section 46


Application for revocation Section 46 failed

Application for revocation Section 46 failed

Points Of Interest

  • Section 46(2) "the test is not whether the single most distinctive element is present but whether the distinctive character of the mark in the form registered has been altered".


[The applicants had initially included in the attack a request for invalidation under Section 47; this, however was not pursued]. As a preliminary point the Hearing Officer notes that although the registered proprietors had not indicated in their counterstatement an intention to rely on the provisions of Section 46(2), in his view 46(2) was "in the nature of a defining provision that determines what can constitute use of a trade mark. As such it can be said to operate automatically without the need for a registered proprietor to expressly plead reliance on the provision". Examining the evidence of use, in various formats, the Hearing Officer concluded that the proprietor had used their mark within the meaning of Section 46(2). The registration was therefore preserved.

Full decision O/134/99 PDF document215Kb