Trade mark decision

BL Number

O/270/04

Decision date

26 July 2004

Appointed Person

Mr Richard Arnold QC

Mark

DEVICE MARK ONLY

Classes

03, 05

Applicants/Appellants

Robert McBride Limited

Opponents/Respondents

Reckitt Benckiser (UK) Limited

Interlocutory decision on the admission of further evidence in appeal proceedings before the Appointed Person.

Result

Application to introduce fresh evidence on appeal, refused.

Points Of Interest

• 1. Fresh evidence in appeals before the Appointed Person.

Summary

At first instance (see BL O/105/04) the Hearing Officer had found that an application for a two dimensional mark was in fact intended for use as a three dimensional object, the goods themselves, and hence had been applied for in bad faith. The applicant appealed to the Appointed Person, and sought to put in fresh evidence to show that the applicant’s attorney had filed the mark as two dimensional because the distinctive feature was confined to the ‘planar surface’ and because the packaging intended to be used would show only that surface, through a transparent plastic window. It might have been a misjudgement, it was not bad faith.

The Appointed Person after reviewing the relevant authorities and practice, considered certain factors:- could and should the evidence have been obtained earlier; its relevance and apparent credibility and its likely influence on the outcome of the appeal.

In the result the Appointed Person ruled against the admission of the fresh evidence.

Full decision O/270/04 36Kb