Trade mark decision

BL Number
Decision date
13 August 1998
Hearing Officer
Mr M Reynolds
Hein Gericke GmbH
Top Shop/Top Man Limited
Section 5(4)(a)


Section 5(4)(a) - opposition failed

Points Of Interest

  • Status of exhibits to evidence filed in other proceedings.


A preliminary point concerned the status of exhibits to a declaration. These had not been present at the time the declaration was made and witnessed; they were already with the Registry as part of the evidence supporting the opponents' own application. As the Hearing Officer noted, the Registry had "in part contributed to the problem by offering to copy the exhibits". The Hearing Officer “reluctantly decided to consider the exhibits as if they had been properly filed” but he went on to advise that the opponents took steps to regularise the position in the event of an appeal.

Turning to consider the opposition under Section 5(4)(a) the Hearing Officer concluded that the marks were confusing, but he also found that the opponents had failed to establish their claims under the other legs of the passing off test, mainly due to shortcomings in their evidence. In particular, it seemed to him that by relying on evidence prepared originally for a quite different purpose the opponents were asking the tribunal to make 'a series of assumptions' in their favour.

Full decision O/163/98 PDF document38Kb