Trade mark decision

BL Number
Decision date
18 September 2006
Appointed Person
Mr Richard Arnold QC
03, 05
Applicant for Revocation
Nirvana Spa & Leisure Ltd
Registered Proprietor
Gail Boura & Clive Boura
Section 46(1)


Section 46(1): Appeal dismissed. Class 3 specifications restricted. Class 5 revoked.

Points Of Interest

  • 1. See Hearing Officer’s decision dated 26 January 2006 (BL O/030/06).
  • 2. Points to be taken into account in restricting a specification - Paragraph 58.


In his decision dated 26 January 2006 (BL O/030/06) the Hearing Officer decided that the registration in Class 5 should be revoked in its entirety and that the two class 3 registrations should be restricted to “Hair care preparations, moisturisers, shower and bath preparations, shaving lotions, make-up removers”.

The applicant appealed on two grounds; that use of the mark NIRVANA NATURAL was not use of the mark NIRVANA as registered and that the Hearing Officer erred in principle in deciding on a fair specification for the Class 3 registrations.

As to the first matter the Appointed Person reviewed earlier decided cases; the guidance issued by OHIM and he also carried out a detailed consideration of the Hearing Officer’s reasoning in the light of the submissions of the applicant. The Appointed Person accepted that the Hearing Officer’s decision was close to the line but it was one he was entitled to make. Appeal dismissed on this ground.

As regards the restriction of the Class 3 registrations the Appointed Person again carried out a full-scale review of guidance from earlier decided cases and he also considered in detail the Hearing Officer’s reasoning in the light of submissions from the applicant. Again the Appointed Person found that the Hearing Officer had reached a reasonable decision and that the appeal relating to the wording of the restricted specifications should be dismissed.

The Appointed Person observed that in cases of this nature it might be appropriate for the Hearing Officer to issue an interim decision and then invite submissions from the parties as to the wording of what might be considered a fair specification in the light of findings as to actual use of the mark at issue.

Full decision O/262/06 PDF document129Kb