Trade mark decision

BL Number: O/239/04
Decision date: 9 August 2004
Hearing Officer: Mr D Landau
Mark: CRYSTAL AIR FRESHENER
Classes: 03, 05, 21
Applicant: Reckitt Benckiser (UK) Limited
Opponent: Robert McBride Limited
Opposition: Sections 3(1)(b); 3(1)(c) & 3(3)(b)

Result

Section 3(1)(b) - Opposition successful.

Section 3(1)(c) - Opposition successful.

Section 3(3)(b) Opposition partially successful.

Points Of Interest

1. Amendment of specifications; withdrawal of request to amend.
2. Deceptiveness; relevant body of consumers.
3. Exclusions in specifications.

Summary

As a preliminary matter the Hearing Officer dealt with a request by the applicants to withdraw an amendment to the specifications, an amendment which they had proposed and which had been accepted by the Registrar at an earlier stage in the registration process. The Hearing Officer refused the request; the applicants had limited the specification they could not now expand it; it was an attempt to circumvent Section 39(2) of the Act. The opposition would therefore be decided on the basis of the amended specifications.

Under Section 3(1)(c) the Hearing Officer concluded that the marks described goods which contain crystals or which could be used to dispense aromas from crystals, or for dispensers which are in the form of crystals.

Their registration would also be contrary to Section 3(1)(b), he decided.

Under Section 3(3)(b) the Hearing Officer found the evidence suggested there was a sizeable body of consumers who knew of the various uses of crystals. It would not be “only the careless or the stupid who would be deceived”. Registration of the Class 3 or Class 5 specifications would be contrary to Sections 3(3)(b) he decided.

Finally the Hearing Officer asked himself (and invited submissions upon) whether the ECJ judgement in Koninklijke KPN Nederland NV v Benelux-Merkenbureau concerning exclusions in specifications, had any bearing on this case. In the result, he decided that it did not.

Full decision O/239/04 76Kb