Trade mark decision
- BL Number
- Decision date
- 9 August 2004
- Hearing Officer
- Mr M Foley
- KANG MEI
- Wang Lei
- China National Cereals Oils & Foodstuffs Import & Export Corporation
- Sections 3(6); 5(2)(b), 5(3), 5(4)(a) & 56
Section 3(6): - Opposition failed.
Section 5(2)(b): - Opposition successful.
Section 5(3): - Opposition failed.
Section 5(4)(a): - Opposition failed.
Points Of Interest
- 1. None
The opponent owned registrations of a mark consisting of the words HUNG MEI, Chinese characters and flower device in Classes 29, 30, 32 and 33. The Class 30 registration covered goods identical and similar to those of the applicant. The opponent also filed details of use of a similar mark consisting of the words HONG MEI, Chinese characters and a device of a flower from 1995 onwards in respect of identical goods (prawn crackers) as those of the applicant. No evidence of use of the registered mark was filed.
The applicant Ms Lei had worked for a company associated with the opponent and was aware of their trade in prawn crackers. She decided to set up her own company in 2001 and adopted the mark in suit.
Under Section 5(2)(b) the Hearing Officer compared the respective specifications and was satisfied that identical or very similar goods were at issue. In comparing the respective marks he noted that HUNG MEI was a transliteration of the Chinese characters appearing in the mark and meant “red plum blossom”, KANG MEI meant “healthy and strong” and the device element of the respective marks was said to represent a five-lobed plum flower device. The Hearing Officer thought that Chinese persons living in the UK could probably differentiate the respective marks but they would appear very similar to non-Chinese customers in the UK and overall he considered the respective marks to be confusingly similar. Opposition succeeded on this ground.
As regards Section 5(4)(a) – Passing Off – the Hearing Officer noted the claimed use of a HONG MEI mark. However, he considered this evidence to be flawed and poorly focused and was not satisfied that the opponent had a reputation and goodwill in the mark in the UK. Opposition failed on this ground.
In view of the lack of reputation opposition also failed on the Section 5(3) ground.
In relation to the Section 3(6) ground, the Hearing Officer noted that the applicant was aware of the opponents’ mark when she adopted her mark. However, although the respective marks were similar there was no evidence that she was acting in bad faith when she filed her application. Opposition failed on this ground.
Full decision O/240/04 68Kb