Trade mark decision

BL Number

O/153/04

Decision date

2 June 2004

Hearing Officer

Mr M Reynolds

Mark

Q Qtech

Classes

09, 37

Applicant

Quantum Microponents Ltd

Opponent

Q-Tech Limited

Opposition

Section 5(2)(b)

Result

Section 5(2)(b): - Opposition successful.

Points Of Interest

• 1. Honest concurrent use.
• 2. Validity of registration; not challengeable in an opposition action.

Summary

The opponents were proprietors of a registration of the mark, QTECH, in Classes 9, 35 and 42. The applicants mark had been accepted on the basis of honest concurrent use. In their counterstatement the applicants had questioned the bona fides of the opponents in adopting ‘their’ mark, and they maintained their defence of honest concurrent use (Section 7(1)).

The Hearing Officer dealt first with the question of the similarities of the marks and the goods and services. The goods were identical, he decided and the services similar “to a reasonably high degree”. After a detailed comparison of the marks the Hearing Officer found a strong likelihood of confusion.

There was a dispute over the original ownership and first use of the mark, but the Hearing Officer ruled that it was not open to him to resolve such a matter as part of an opposition action. The opponents’ registration had to be presumed valid by the terms of Section 72 and no invalidity action had been launched nor stay of proceedings sought, pending the outcome of such an action.

The Hearing Officer therefore turned to consider the matter of honest concurrent use. Having examined the evidence, however, he concluded that there was nothing to confirm that the respective marks, goods/services had co-existed in circumstances which would displace his own finding of a likelihood of confusion. The opposition succeeded accordingly.

Full decision O/153/04 66Kb