Trade mark decision

BL Number
O/148/08
Decision date
23 May 2008
Hearing Officer
Mr O Morris
Mark
THE FRUIT THE WHOLE FRUIT AND NOTHING BUT YTHE FRUIT
Classes
32
Applicant
Myles Moriarty
Opponent
Online Catering T/A Juice 4U
Opposition
Section 5(4)(a)

Result

Section 5(4)(a): Opposition failed.

Points Of Interest

  • None

Summary

Only the opponent filed evidence in these proceedings. It claimed to have coined the mark THE JUICE, THE WHOLE JUICE AND NOTHING BUT THE JUICE in 2001 and to have used it on labels and packaging from 2001 onwards. The opponent provided turnover figures which had increased to some £1.4m by 2005 and promotion, mainly to trade outlets, of some £72k by 2005.

The evidence filed by the opponent showed that it uses its sign as a slogan and it is not particularly prominent on the actual packaging of the goods, being some distance form the primary marks JUICE REPUBLIC and JUICE4U, or on the promotional material. In some instances it appears to be used as a type of guarantee. In relation to the goods the Hearing Officer considered this sign to be of weak distinctive character.

The Hearing Officer accepted that the respective marks were quite similar and if the opponent could show that it had a reputation and goodwill in its mark then it would have a reasonable chance of success. However, the Hearing Officer decided the lack of distinctiveness of the opponent’s mark JUICE mark coupled with the style of use over a fairly short period meant that it was unlikely that use by the opponent of its FRUIT mark would be taken by trade customers or consumers as the goods of the opponent. Opposition under Section 5(4)(a) thus failed.

Full decision O/148/08 PDF document414Kb