Trade mark decision

BL Number: O/161/99
Decision date: 11 June 1999
Hearing Officer: Dr W J Trott
Mark: DARIGARD
Classes: 31
Registered Proprietor: Tangerine Holdings Ltd
Applicants for Declaration of Invalidity: Smarte International Inc
Application for Invalidation: Sections 47(2)(b) & 60(3)

Result

Application for invalidation unsuccessful.

Points Of Interest

1. A ‘similar’ mark for the purposes of Section 5(2) is not the ‘same’ mark for the purposes of Section 60.

Summary

The registered proprietor had once acted as UK agent for the importation of the applicants’ goods. The Section 47(2)(b) ground was based on the applicants’ claim to an earlier right under Section 5(4)(a). The Hearing Officer, however, found that the applicants had not been able to show that their mark DAIRY GUARD was used in the UK prior to the relevant date. That ground therefore failed.

Turning to consider the Section 60 ground the Hearing Officer noted that the registered proprietor’s mark DARIGARD might be similar to the applicants’ mark DAIRY GUARD for the purposes of Section 5(2), it was not the same mark for the purposes of Section 60. That ground therefore failed also. The applicants’ pleadings had not included any reference to Section 3(6), and the Hearing Officer therefore stated that it would not be proper for him to express a view on that.

Full decision O/161/99 17Kb