Trade mark decision

BL Number
O/583/01
Decision date
19 December 2001
Appointed Person
Professor Ruth Annand
Mark
MAGIGROW
Classes
01
Applicant
Magigrow International Limited
Opponent
Scotts Miracle-gro Products Inc
Opposition
Sections 3(6), 5(2)(b) & 5(4)(a)

Result

Section 3(6): - Opposition failed.

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

Section 5(4)(a): - Opposition failed.

Points Of Interest

  • 1. This was an appeal from the Hearing Officer’s decision dated 30 May 2001 (SRIS O/240/01).

Summary

The Appointed Person reviewed the evidence from both parties in relation to the applicants applications for MAGIGROW and variations thereof and the opponents registered marks MIRACLE-GRO and MIRACLE-GRO set against a black circular background. She noted that the Hearing Officer had found MIRACLE-GRO to have an enhanced level of distinctiveness because of extensive use and promotion of the mark.

Under Section 5(2)(b) it was common ground that identical goods were at issue and the Appointed Person compared the respective marks MAGIGROW (and variations) and MIRACLE-GRO (solus and with device). Taking account of the Hearing Officer’s findings and the criticism by the opponents as regards those findings, the Appointed Person considered that the Hearing Officer had taken account of the evidence before him and had applied the proper tests. She confirmed the Hearing Officer’s decision that the respective marks were not confusingly similar and thus on an overall view there was no likelihood of confusion of the public.

Under Section 5(4)(a) - Passing Off - the opponents main ground of appeal was that the Hearing Officer had taken insufficient account of the respective packaging and get-up when comparing actual use of the respective marks. However, the Appointed Person noted that the Hearing Officer had compared the respective get-up and packaging but had concluded that no confusion was likely because of the presence of the prominent elements MIRACLE-GRO and MAGI-GROW. The Appointed Person confirmed that her overall impression was the same as that of the Hearing Officer.

The Hearing Officer had noted from the evidence that the applicants had sought to adopt a mark similar to MIRACLE-GRO but, as he had found the marks not to be confusingly similar, there could be no finding of bad faith under Section 3(6). The Appointed Person confirmed this finding.

Full decision O/583/01 PDF document190Kb