Trade mark decision

BL Number

O/246/04

Decision date

12 August 2004

Hearing Officer

Mr M Reynolds

Mark

Superdry

Classes

25

Applicant

Cult Clothing

Opponent

Asahi Breweries Limited

Opposition

Section 5(3) & 5(4)(a)

Result

Section 5(3) - Opposition failed

Section 5(4)(a) - Opposition failed

Points Of Interest

• None

Summary

The opponents own two registrations (one UK and one Community) for a label mark consisting of the word ASAHI, ASAHI BREWERIES LIMITED, SUPER DRY, other descriptive wording and Japanese Characters, in Class 32 in respect of "Beer". They filed evidence of use of their mark from 1994 onwards and in addition to the use of the label mark there was some use of the words ASAHI SUPER DRY. In most instances use of SUPER DRY appeared to be descriptive in that the words were used in relation to "Dry Beer".

Under Section 5(3) the Hearing Officer was unable to conclude that the opponents had established that use of this label mark meant that they had a reputation in the words SUPER DRY. The words were not prominent in the label marks and in any case appeared to have descriptive connotations. This being the case the opponents' case could not be sustained under Section 5(3) and this was without taking into account the fact that the applicants goods were far removed from those of the opponents. Opposition failed on this ground.

Under Section 5(4)(a) the Hearing Officer noted that he could take a broader view of the evidence filed and take account of use in the form ASAHI SUPER DRY. However, even taking a generous view of all the evidence the Hearing Officer was not convinced that the opponents had established any reputation in the words SUPER DRY or that consumers would see the words as a badge of origin. On the contrary they were likely to see the words as merely descriptive. Opposition thus failed on the Section 5(4)(a) ground.

Full decision O/246/04 91Kb