Trade mark decision

BL Number

O/418/02

Decision date

14 October 2002

Hearing Officer

Mr G Salthouse

Mark

MIRIVAIR

Classes

05

Applicant

Bayer Aktiengesellschaft

Opponent

Pharmacia & UpJohn SA

Opposition

Section 5(2)(b)

Result

Section 5(2)(b): - Opposition successful.

Points Of Interest

• The presence of other MIR marks on the Register were of little relevance as this may not reflect the position in the marketplace.

Summary

The opponents opposition was based on their ownership of a registration in Class 5 of the mark MIRVIVA in respect of the same and similar goods as those of the applicants.

Both parties filed submissions about the similarity of the respective marks, the opponents claiming that the marks were confusingly similar, the applicants that the marks were not similar.

In considering the matter under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the respective marks MIRIVAIR and MIRVIVA. The Hearing Officer noted that the two marks had the same suffix and were of similar length. Aurally it was possible to pronounce the two marks differently but there was no evidence on this point and some pronunciations could be similar. Conceptually both marks would be seen as invented words. On a global appreciation and bearing in mind that identical goods were at issue the Hearing Officer decided there was a likelihood of confusion of the public. Opposition thus succeeded.

Full decision O/418/02 21Kb