Trade mark decision

BL Number

O/459/99

Decision date

30 December 1999

Hearing Officer

Mr G Salthouse

Mark

D'URBAN POISON

Classes

09, 16, 25, 28, 41

Applicant

Adrian Thaws

Opponent

Kabushiki Kaisha D`Urban (D`Urban Incorporated)

Opposition

Section 5(2) and 5(4)

Result

Section 5(2) - Partially successful in respect of Class 25

Section 5(4) - Partially successful in respect of Class 25

Points Of Interest

• None.

Summary

The opponents opposition was based on their ownership and use of their registered mark D’URBAN & geometric device in Class 25. The opponents filed evidence showing significant use of their mark from 1979 in respect of articles of clothing. The applicants neither filed a counterstatement nor did they file any evidence in support of their application. Under Section 5(2) the H/O decided that only the same or similar goods were at issue in respect of the Class 25 application and went on to conclude that the respective marks were confusingly similar because of the prominence of the word DURBAN in the respective marks. Opposition successful in Class 25 but not in respect of other Classes where respective goods were not similar.

Under Section 5(4) the Hearing Officer concluded that the opponents were successful in respect of the applicants Class 25 application but as they had filed no evidence other than in respect of their Class 25 use, the Hearing Officer found in favour of the applicants in respect of their applications in Classes 9, 16, 28 and 41. Applicants allowed one month to delete Class 25 from their application. If application not amended it would be refused in its entirety.

Full decision O/459/99 41Kb