Trade mark decision

BL Number

O/481/01

Decision date

5 November 2001

Hearing Officer

Mr D Landau

Mark

HHC

Classes

05, 09, 16

Applicants

Eisai Co Ltd

Opponents

Mundipharma AG

Opposition

Sections 3(3)(b); 3(6); 5(2)(b)*; 5(4)(a)* *In relation to pharmaceutical preparations only

Result

Section 3(3)(b) - Opposition dismissed

Section 3(6) - Opposition dismissed

Section 5(2)(b) - Opposition failed

Section 5(4)(a) - Opposition failed

Points Of Interest

• The applicant’s statement in these proceedings in relation to intention to use did not indicate what his intentions were at the time of filing; it was ‘made on the basis of trying to reach an accommodation’ with the opponent.

Summary

The opposition was based on the opponents’ mark DHC. Under Section 5(2)(b) the Hearing Officer found that the marks were not similar. The opponent had not demonstrated that in use the mark’s might be confused due to handwriting; consequently the Hearing Officer did not find any likelihood of confusion.

This effectively decided the matter under both Section 5(2)(a) and Section 5(4)(a).

Under Section 3(3)(b) the opponents alleged that use of the mark HHC on a topical preparation not containing hydrocortisone would be likely to deceive the public. However this allegation appeared in the submissions and not in the original grounds of opposition, and was consequentially dismissed. In any case, the Hearing Officer could see no reason why the public would ignore the first letter H and assume that the remainder of the mark referred to hydrocortisone.

The Hearing Officer also dismissed all three allegations made under Section 3(6). In particular he remarked that an applicant’s statement of intentions in relation to use made after the start of proceedings was not indicative of his intentions at the time of application.

Full decision O/481/01 60Kb