Trade mark decision

BL Number
O/306/08
Decision date
10 November 2008
Appointed Person
Ms A Michaels
Mark
TIME MACHINE (Series of two)
Classes
09
Applicant for Revocation
Aikman & Associates
Registered Proprietor
Apple Inc
Revocation
Section 46(1)(b). Appeal to the Appointed Person

Result

Appeal to the Appointed Person: Appeal dismissed.

Points Of Interest

  • 1. See also Hearing Officer’s decision dated 8 April 2008 (BL O/100/08)
  • 2. The acceptance of late filed evidence must be considered widely. Is it material evidence; how serious is the irregularity and what is the burden on the other party. (See Appointed Person BL O/467/02).

Summary

In his decision dated 8 April 2008 the Hearing Officer was satisfied that the registered proprietor had used its marks and he dismissed the application for revocation.

The applicant appealed to the Appointed Person on the grounds that the Hearing Officer had erred in his consideration of the registered proprietor’s evidence and ought not to have been satisfied that use of the marks in suit had taken place. The registered proprietor cross-appealed in relation to a decision by the Hearing Officer to allow the filing of late evidence.

The Appointed Person reviewed the evidence before the Hearing Officer and his written decision. In particular the Appointed Person looked at the evidence relating to web-site use and accepted that this merely showed awareness of the marks rather than use. However, with regard to the sale of Early Starter Kits within the relevant period the Appointed Person believed that the Hearing Officer had made a reasonable decision in relation to the sale of such goods and she went on to dismiss the appeal.

As regards the cross appeal the Appointed Person decided that the Hearing Officer had taken two narrow a view in refusing to accept into the proceedings late filed evidence. In the context of these proceedings such evidence would have plugged some holes in the registered proprietor’s evidence and thus it was clearly relevant. Also, the applicant only objected on the grounds that it wished to have an opportunity to respond. However, no further action in view of the dismissal of the appeal.

Full decision O/306/08 PDF document85Kb