Trade mark decision

BL Number
O/394/02
Decision date
30 September 2002
Hearing Officer
Mr M Foley
Mark
ABACUS HIGH QUALITY ........
Classes
37
Applicant for Invalidity
Victor Niemczyk
Registered Proprietor
Graham William Evans
Invalidity
Sections 47(1) & 3(6)

Result

Sections 47(1) & 3(6): - Application for invalidity failed.

Points Of Interest

  • None

Summary

The applicant for invalidation had previously been in partnership with the registered proprietor and a Mr Meredith. The partnership broke up in June 1998 with agreement that Mr Evans and Mr Meredith would keep the VAT registration and sub-contract certificate. However, nothing was agreed about ownership of the mark as used-ABACUS HIGH QUALITY PAINTERS AND DECORATORS - and it would appear that both parties continued to use the mark (or something close to it) after the partnership broke up. Both parties claimed that the other party had left the partnership.

Subsequently the applicant (Mr Niemczyk) formed a limited company with the name ABACUS HIGH QUALITY PAINTERS AND DECORATORS Ltd and Mr Evans and partner formed a company with the name ABACUS DECOR Ltd (because the name above had been registered by Mr Niemczyk). The mark at issue was applied for by Mr Evans on 22 January 2001 and is of course now registered.

In his consideration under Section 3(6) the Hearing Officer determined that the mark as registered was owned by the partnership of three people, namely, Mr Evans, Mr Meredith and Mr Niemczyk and that each had a right to use the mark when the partnership broke up in June 1998. Thus in the Hearing Officer's view the proprietor Mr Evans had a right to claim ownership when he made his application and that he had not acted in bad faith in making his application. The Hearing Officer observed that Mr Meredith and Mr Niemczyk also owned the mark and they also could register it in their own names if they so wished.

The application for invalidity failed with costs awarded to the registered proprietor.

Full decision O/394/02 PDF document58Kb