Trade mark decision

BL Number
Decision date
26 June 2002
Hearing Officer
Mr S P Rowan
Applicant for Revocation
Azteca Foods Inc
Registered Proprietors
Aztec Mexican Foods Limited
Sections 46(1)(a) & (b) & 46(6)(b)


Section 46(1)(a) & (b) - Revocation successful.

Section 46(6)(b) - Revocation with effect from 17 February 2000.

Points Of Interest

  • 1. Evidence of use: The proprietors evidence was filed by associated companies and little information was provided about the relationship between these companies. Had use been shown the Hearing Officer has indicated that he may not have been able to take account of the evidence filed since it was not clear that such use in the circumstances described, would have been with the proprietors consent.
  • 2. Scope of the Revocation: As noted above the revocation was filed against a Class 30 registration under No 1546754. Before the completion of the evidence rounds and hearing a Class 29 registration for the same mark had been merged with the Class 30 registration under No 1546754. At the hearing the applicants argued that the revocation action should apply to both Classes. The Hearing Officer refused this request since the original application for revocation had only been in respect of the Class 30 registration.


An application for revocation on the grounds of non-use was filed on 25 July 2000 against the registration in Class 30 No 1546754.

On 17 August 2000 a registration in Class 29 was merged with the Class 30 registration under No 1546754. While the merger was taking place, the notice of revocation was removed from the database and this led to the claim being undefended and the issue of a Registry decision removing the Class 30 registration from the Register. When the error was discovered, the Registry decision was withdrawn and the proceedings were put back on a normal footing, albeit after some delay.

The registered proprietor filed evidence to show that they had contacted British firms during the relevant five year periods and that some samples and sample packaging had been provided. None of these contacts had led to orders because of the cost of transporting the goods form Canada nor had a British Agent been appointed. A UK Company had been formed but there was no evidence filed to suggest that it had traded during the relevant period. By the time of the hearing the registration was held by Aztec Mexican Foods Ltd of London.

Having carefully considered the evidence filed the Hearing Officer reached the view that no user of the mark had been proved nor was there any proper reasons for non-use provided. Normal difficulties in selling goods in the UK because of transport costs was not a proper reason for non-use. The applicants for revocation were successful in respect of the Class 30 registration within No 1546754.

Full decision O/258/02 PDF document36Kb