Trade mark decision

BL Number
Decision date
13 June 2002
Hearing Officer
Mr S P Rowan
08, 18, 20
Registered Proprietor
NRS Foods Marketing Ltd
Applicants for Declaration of Invalidity
Gardena Kress + Kastner GmbH
Application for Invalidation
Sections 47(1) (3(6)); 47(2)(a) (5(2)(b)); 47(2)(b) & (5(4)(a))


Section 47(1) (Section 3(6)) - Application for invalidation dismissed

Section 47(2)(a) (Section 5(2)(b)) - Application for invalidation partially successful

Section 47(2)(b) (Section 5(4)(a)) - Application for invalidation dismissed

Points Of Interest

  • 1. Comparison of the goods.


The application for a declaration of invalidity was based on the applicants’ prior registrations of GARDENA, in Classes 8 and 20 (and six other classes). The Hearing Officer dealt with the matter first under Section 5(2)(b). He found, first, that the applicants’ mark had a low degree of distinctive character which had not been improved through use.

Comparing the marks, the Hearing Officer found some visual and conceptual similarity between the marks and a "high degree of aural similarity". Comparing the goods the Hearing Officer found some goods in Classes 8 and 20 to be identical or similar, but none in Class 18. In the light of those findings the Hearing Officer found the applicants successful in respect of Classes 8 and 20 (in part); the application in respect of Class 18 was dismissed.

The evidence did not support the applicants’ claim to goodwill or reputation and the Section 5(4)(a) case fell accordingly.

There was no evidence to support the allegation under Section 3(6).

Full decision O/241/02 PDF document44Kb