Trade mark decision

BL Number

O/387/01

Decision date

7 September 2001

Hearing Officer

Mr D Landau

Mark

CALCIMILK

Classes

29

Applicant

Johnson & Johnson

Opponent

Unigate Dairies Limited

Opposition

Sections 3(6), 5(2), 5(3), 5(4)

Result

Section 3(6) - Opposition dismissed

Section 5(2)(b) - Opposition successful

Section 5(3) - Opposition failed

Section 5(4)(a) - No formal finding

Points Of Interest

• A previous history of co-existence on the register could have no bearing on the matter; co-existence in the market might have been a relevant factor.

Summary

The opposition was based on the opponents' use and registration of their mark CALCIA. Under Section 5(2)(b) the Hearing Officer found a similarity in the marks and identicality in the goods and concluded that a likelihood of confusion existed. The opposition under Section 5(2)(b) succeeded accordingly; a previous history of co-existence on the register did not affect the matter, co-existence in the market might have been a relevant factor. The opponents did not provide evidence of a reputation, consequently the opposition under Section 5(3) failed. The opponents were in no better position under Section 5(4)(a) then under Section 5(2)(b) and could not succeed to a greater extent. The Section 3(6) objection was dismissed as it had been neither supported nor explained.

Full decision O/387/01 26Kb