Trade mark decision

BL Number
O/234/06
Decision date
16 August 2006
Hearing Officer
Mrs A Corbett
Mark
JADE DRAGON & DEVICE
Classes
30
Applicant for Invalidation
C P Retailing & Marketing Co Ltd
Registered Proprietor
B E International Foods Ltd
Invalidation
Section 47(2)(a) & (b) based on Sections 5(2)(b) & 5(4)(a)

Result

Section 47(2)(a) & 5(2)(b): Invalidation action successful. Section 47(2)(b) & 5(4)(a): Not considered.

Points Of Interest

  • See also BL O/238/06 relating to opposition proceedings between the same parties.

Summary

The applicant owned the mark GREEN DRAGON and device of a dragon, registered in respect of a range of foodstuffs in Classes 29 & 30.

The applicant also filed evidence of use of its mark with sales in the period 1997-2000 averaging over £3 million per annum. However, the supporting documentation was deficient in a number of respects as regards the lack of invoices, advertising expenditure and details of market share and the Hearing Officer was unable to find that the applicant’s mark had an enhanced reputation because of the use made of it. However, she considered it a mark of relatively high distinctive character.

Under Section 5(2)(b) the Hearing Officer noted that identical and similar goods were at issue and went on to compare the respective marks. Both marks contained the word GREEN and devices of dragons and the Hearing Officer decided that the marks, compared as wholes, had some visual and aural similarity. Additionally because the word Jade also means the colour green the Hearing Officer considered the marks to be conceptually similar, particularly if both marks were presented in the colour green. She went on to find that overall there was a likelihood of confusion and that invalidation succeeded on this ground.

The Hearing Officer saw no need to consider the ground under Section 5(4)(a) in view of her finding under Section 5(2)(b).

Full decision O/234/06 PDF document129Kb