Trade mark decision

BL Number: O/299/04
Decision date: 29 September 2004
Hearing Officer: Mr J MacGillivray
Mark: OZARK TRIAL
Applicant: Wal-Mart Stores Inc
Opponent: Ozark - London Limited
Opposition: Sections 3(6); 5(2)(b) & 5(4)(a)

Result

Section 3(6) - Opposition failed

Section 5(2)(b) - Opposition partially successful

Section 5(4)(a) - Opposition partially successful

Points Of Interest

1. Comparison of the goods: ‘furniture’ same as 'furniture specially adapted for camping'.
2. Comparison of the marks OZARK v OZARK TRAIL

Summary

The opposition was based on the opponent's marks OZARK and OZARK with device of a wild boar. The Hearing Officer considered the matter first under Section 5(2)(b), which was not directed against the goods in Classes 4, 6, 9 or 17, and which in Class 22 was directed solely against "hammocks and tents". It was conceded that the evidence of use did not justify a wider penumbra of protection.

After a detailed consideration of the goods in issue the Hearing Officer found a number to be closely similar and others to be similar.

There was similarity in the marks, and on a global appreciation there was a likelihood of confusion where the marks were to be used on certain goods. The opposition under Section 5(2)(b) succeeded in respect of those goods.

The opponent's case under Section 5(4)(a) was no stronger than that under Section 5(2)(b). The evidence did not support the allegation of bad faith and the opposition on this ground failed accordingly.

Full decision O/299/04 73Kb