Trade mark decision

BL Number
Decision date
3 September 2003
Hearing Officer
Dr W J Trott
Robert McBride Limited
Henkel Kommanditgesellschaft Auf Aktien & S A Henkel Belgium NV
Section 5(2)(b)


Section 5(2)(b) - Opposition failed.

Points Of Interest

  • 1. The applicant accepted during the proceedings that this type of mark was not distinctive but had had to file to protect their commercial position in the marketplace.


The opponents opposition was based on their ownership of two prior marks in Class 3. Mark No 737273 consists of a soap tablet coloured red, blue and white; mark No 729844 (currently under opposition) consists of the shape of a table of soap. In these proceedings it was accepted that identical goods were at issue.

In any comparison of the respective marks it was accepted that the opponents best case related to application 2234004. In his consideration of the distinctive character of the opponents' marks the Hearing Officer noted the large number of applications for such marks and the other material which was before him which showed that many traders used similar colours and presentation of soap tablets for dish washers and washing machines. He thus considered that they had a very low threshold of distinctiveness and that in this particular area, small differences in such marks would serve to avoid confusion. The opponents' three colours were essentially red, blue and white as compared to the applicant’s white, blue and pink; also the applicant's colours were in a different sequence. Viewed overall the Hearing Officer concluded that the respective marks were not confusingly similar. A similar finding was made in respect of the other two marks No 2234005 (colours lilac, orange and white) and No 2234009 (colours blue, yellow and while). Opposition thus failed against all three marks.

Full decision O/272/03 PDF document36Kb