Trade mark decision
- BL Number
- Decision date
- 20 December 2004
- Hearing Officer
- Mr J MacGillivray
- 14, 25, 28
- Ke Pro BV (formerly Keijser-Producties BV)
- Amberes SA
- Sections 5(2)(b), 5(3) & 5(4)(a)
Section 5(2)(b): - Opposition failed.
Section 5(3): - Opposition failed.
Section 5(4)(a): - Opposition failed.
Points Of Interest
- 1. The opponent appealed to the Appointed Person. In his decision dated 12 September 2005 (BL O/252/05) the Appointed Person upheld the Hearing Officer's decision and dismissed the appeal.
The opponent in these proceedings owns a registration in the UK for the mark ESCORPION and device of a scorpion in Class 25 and a Community Trade Mark registration for the mark ESCORPION in Class 25 (also Classes 14 and 24). The opponent also claimed use of its ESCORPION mark from 1985 onwards and filed details of modest use of this mark in respect of clothing. The Hearing Officer did not consider that such use enhanced the distinctiveness of the opponent's mark but he accepted that it was a distinctive mark in relation to items of clothing.
The applicant also filed details of use of its mark but there was only limited use prior to the relevant date so it had no impact on the Hearing Officer's decision.
Under Section 5(2)(b) the Hearing Officer noted that identical goods were at issue and went on to compare the respective marks. He had little difficulty in concluding that the respective marks were very different both visually and phonetically. While there might be some conceptual similarity this was insufficient to justify a finding that the respective marks were similar. As there was no likelihood of confusion of the public this ground of opposition failed.
As the opponent was in no better position under Sections 5(3) and 5(4)(a), opposition also failed in respect of these grounds.
Full decision O/372/04 54Kb