Trade mark decision

BL Number: O/182/02
Decision date: 29 April 2002
Hearing Officer: Mr D Landau
Mark: ALLIMAX
Classes: 05
Applicant: Health Perception (UK) Ltd
Opponent: Almirall-Prodesfarma S.A.
Opposition: Section 5(2)(b)

Result

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

Points Of Interest

2. The opponents appealed to the Appointed Person. In his decision dated 13 August 2002 (BL O/371/02). The Appointed Person upheld the Hearing Officer’s decision.
1. Restriction of Specification : If the applicants restricted their specification as proposed by the Hearing Officer, the application would be allowed to proceed.

Summary

The opponents opposition was based on their ownership of a Community registration for the mark ALMAX in Class 5 for “a special pharmaceutical product used for neutralizing gastric hyperacidity”. The applicants specification covered the following goods; “Compositions for medicinal purposes containing substances obtained from plants, vitamins combinations, minerals, amino acids, enzymes and herbal preparations”. In its counterstatement the applicants stated that the exact goods traded under the mark was a food supplement incorporating garlic and allicin and thus the respective goods were not similar.

Under Section 5(2)(b) the Hearing Officer stated that he must compare the respective goods as set down in the two specifications. After applying the usual tests the Hearing concluded that the respective goods were similar and went on to compare the marks ALMAX and ALLIMAX. He considered that both marks would be viewed as invented words and that phonetically the only difference between the two marks was the presence of the letter “I” in the applicants mark. As this was a very small difference which could be lost in speech the marks must be considered to be very similar. In an overall context, therefore there was a likelihood of confusion of the public and the opponents were therefore successful in their opposition.

In the light of information in the counterstatement and submissions at the hearing about the exact nature of the applicants goods, the Hearing Officer indicated that if the applicants specification was restricted to “garlic supplements, all being compositions for medicinal purposes for the heart and blood circulation” the application would be allowed to proceed.

Full decision O/182/02 34Kb