Trade mark decision

BL Number
O/248/08
Decision date
27 August 2008
Hearing Officer
Mr G Salthouse
Mark
PATIO GAS
Classes
04, 06
Applicant
Calor Gas Limited
Opponent
Flogas UK Limited
Opposition
Section 3(1)(b) & (c)

Result

Section 3(1)(b) & (c): Opposition successful.

Points Of Interest

  • None

Summary

The application in suit was accepted as having acquired distinctiveness, following the filing of evidence of use, in respect of the following goods:

Class 4 Gas for patio heaters

Class 6 Cylinders for gas for patio heaters

The opponent claimed that the mark in suit was without distinctive character Section 3(1)(b) and was descriptive of gas or gas containers for use with gas heaters for patio use. The opponent also filed a number of extracts from the internet and brochures which it claimed showed use of the mark in suit as a descriptive term.

The applicant claimed to have invented the mark in the year 2000 and to have used it thereafter in respect of gas and gas containers. The applicant also re-filed the evidence filed in support of the application which gives details of turnover and advertising for the years 2000, 2001 and 2002. Use of the mark showed that it is usually used with the house mark CALOR.

The Hearing Officer noted that at the date of application (11 February 2003) the term ‘patio heater’ was in common use. Thus the average consumer would assume that gas sold under the mark was for patio heaters or other patio appliances. The mark is thus clearly descriptive and the Hearing Officer found that the opposition succeeded in respect of Section 3(1)(b) & (c).

The Hearing Officer also considered whether the evidence of use filed was sufficient to justify registration. Use had occurred for only a short period prior to registration and in most instances was used with the house mark CALOR. The Hearing Officer did not believe that the mark in suit would be seen as a secondary mark rather than a descriptive term which indicated the purpose of the goods. The earlier finding in respect of Section 3(1)(b) & (c) confirmed.

Full decision O/248/08 PDF document53Kb