Trade mark decision

BL Number

O/274/02

Decision date

12 July 2002

Hearing Officer

Dr W J Trott

Mark

TEMPTATION

Classes

30

Applicant for Revocation

Kellogg Company

Registered Proprietor

The Jacob’s Bakery Company

Revocation

Section 46(1)(b)

Result

Section 46(1)(b): - Revocation partially successful.

Points Of Interest

• 1. Submission/evidence: It is important to distinguish between submissions and evidence that a particular fact is very widely known.

Summary

The registered proprietors mark as registered in Class 30 covered a wide range of goods but the only use substantiated by their evidence was "Biscuits for export to the Republic of Ireland."

The applicants accepted that genuine use had taken place but requested that the specification of the registered mark should be restricted to the exact area of use. The Hearing Officer did not agree with this submission since Section 46(2) of the Trade Marks Act 1994 states that "use solely for export constitutes use in the UK". In the circumstances, therefore, he restricted the specification of the registration to "Biscuits (other than biscuits for animals)".

In their submissions the registered proprietors had raised a technical objection to the applicants application. They claimed the applicants had made a broad claim at the outset and then reduced it in the light of the evidence. The Hearing Officer rejected this submission on the grounds that it was inaccurate; that it was only made at a late stage in the proceedings and in any event would lead to further proceedings.

Full decision O/274/02 29Kb