Trade mark decision

BL Number

O/149/04

Decision date

27 May 2004

Hearing Officer

Mr D Landau

Mark

NATURAL WHITE

Classes

03

Applicant

Eric Peterson

Opponent

Henkel Kommanditgesellschaft Auf Aktien

Opposition

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

Result

Section 3(1)(b): - Opposition successful.

Section 3(1)(c): - No formal finding.

Section 3(1)(d): - No formal finding.

Points Of Interest

• 1. Evidence: “to whom it may concern” : does not satisfy requirements of Rule 55.
• 2. Star device; not distinctive in relation to dental products.

Summary

In a decision on a preliminary issue, the Hearing Officer excluded two items in the applicant’s evidence from the proceedings. These were letters addressed “To whom it may concern”. Such evidence did not meet the requirements of Rule 55 of the Trade Marks Rules 2000, he decided.

Turning to the substantive issues, the Hearing Officer dealt first with the matter under Section 3(1)(b). After a careful review of the relevant authorities the Hearing Officer concluded that the words NATURAL WHITE did not add up to a distinctive whole and the stylisation claimed for them was no more than an ordinary typeface. The evidence showed that a star device was in common usage in relation to dental products. The mark was devoid of distinctive character, he decided. The Hearing Officer went on to examine whether the mark had acquired a distinctive character as a result of the use made of it, and decided eventually that it had not. The application therefore had to be refused. The European Ltd v The Economist Newspaper Ltd [1998] FSR 283

The Hearing Officer did not go on to consider the matter under the remaining ground of opposition.

In considering the question of costs the Hearing Officer commented, adversely, on the quality of some of the evidence presented.

Full decision O/149/04 135Kb