Trade mark decision

BL Number
O/416/01
Decision date
25 September 2001
Hearing Officer
Mr S P Rowan
Mark
HYPER BLASTER
Classes
09, 28
Applicant
Konami Co Ltd
Opponent
Creative Technology Limited
Opposition
Sections 3(6), 5(2)(b) & 5(4)(a)

Result

Section 3(6) - Ground dismissed

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

Section 5(4)(a) - Opposition failed

Points Of Interest

  • 1. Family of marks. Some useful guidance including a reference to the Panacell Trade Mark Application BL O/413/00.
  • 2. The matter of costs was deal with by the Hearing Officer in his decision dated 18 January 2002 (BL O/022/01)

Summary

The opponents opposition was based on their ownership of a number of registrations in Class 9 incorporating the word BLASTER and of BLASTER (solus). They proved a reputation, through use, of the marks SOUND BLASTER and VIDEO BLASTER in respect of specific goods and as the words SOUND and VIDEO were descriptive the Hearing Officer also held that the opponents had a reputation in the word BLASTER (solus) at the relevant date. Survey evidence filed by the opponents was not taken into account because the survey was not carried out in compliance with normal guidelines. The applicants had some use of their mark in relation to specific goods but such use occurred after the date of application.

Under Section 5(2)(b) the Hearing Officer noted that on a normal and fair use basis, identical goods were at issue and reached the view, when comparing the respective marks, that they were confusingly similar. However, in relation to the goods of interest to the applicants in Class 9 and the goods claimed in Class 28 there was little likelihood of confusion. The application was thus allowed to proceed for a restricted specification in Class 9 and as applied for in Class 28.

Under Section 5(4)(a) the Hearing Officer was of the view that the opponents were in no better position as compared to Section 5(2)(b) and did not deal with the Section 5(4)(a) ground in detail.

The opponents who opposed the applicants application under Section 3(6) did not state their objections in relation to this ground, nor did they file any evidence in support of this ground. The Hearing Officer refused to hear argument in relation to the ground under Section 3(6) that the applicants specifications were too broad, because the applicants had not been advised as to the nature of the objection. Ground dismissed.

Full decision O/416/01 PDF document42Kb