Trade mark decision

BL Number
O/290/08
Decision date
12 September 2008
Appointed Person
Mr Geoffrey Hobbs QC
Mark
SPIRIT
Classes
03
Applicant
The Boots Company Plc
Opponent
Spirig Pharma AG
Opposition
Section 5(2)(b). Appeal to the Appointed Person

Result

Appeal to the Appointed Person: Decision set aside and proceedings remitted to the Registrar, because of serious procedural irregularity.

Points Of Interest

  • 1. See also Hearing Officer’s decision dated 15 May 2008 (BL O/138/08)
  • 2. See new Registry decision dated 23 December 2008 (BL O/340/08). Again the Hearing Officer decided that the opposition failed.

Summary

In his decision dated 15 May 2008 (BL O/138/08) the Hearing Officer decided that the respective marks SPIRIT and SPIRIG were not similar and that the opposition failed. However, the Hearing Officer had made his decision on the basis that neither party had filed evidence or written submissions. Subsequently it transpired that the opponent had in fact filed written submissions which had failed to reach the official file until after the issue of the Hearing Officer’s decision. The Registry apologised to both parties for the error.

The opponent appealed to the Appointed Person to ask that the Hearing Officer’s decision should be set aside because a serious procedural irregularity had occurred in that its submissions had not been taken into account. The Appointed Person agreed that his had occurred and returned the proceedings to the Registrar for the issue of a new decision by a different Hearing Officer.

The Appointed Person declined to consider a second ground of appeal that the Hearing Officer had erred in various respects in his reasoning in reaching his decision.

The matter of costs was discussed but it was decided that this matter should be decided when the final outcome of the proceedings was known. The Appointed Person observed that the parties might wish to approach the Registrar about the possibility of an ex-gratia payment for the error which had occurred.

Full decision O/290/08 PDF document36Kb