Trade mark decision

BL Number

O/172/02

Decision date

19 April 2002

Hearing officer

Mr J MacGillivray

Mark

CD CARD

Classes

16

Registered Proprietor

Tabak Marketing Limited

Applicants for Declaration of Invalidity

Michael Robin Markwell Limited

Application for Invalidation

Sections 47(1) (Sections 3(1)(b), 3(1)(c); 3(1)(d) & 3(6))

Result

Application for invalidation Section 47(1) successful

Points Of Interest

• Whilst Section 72 places the onus on the applicants for invalidation, the Registrar's tribunal may nevertheless proceed by way of a re-hearing of the basis on which the mark was accepted, using the Hearing Officer’s own knowledge and experience.

Summary

This was one of two related actions against this registration (see also BL O/173/02). Having examined the prima facie case against the mark the Hearing Officer concluded that it comprised "two obvious and highly descriptive elements conjoined and that in its totality the mark may serve in normal usage from a customer's point of view to designate the kind of goods concerned (greetings cards incorporating compact discs) in a natural way."

The mark therefore did not meet the requirements of Section 3(1)(c) of the Act and thus failed also under Section 3(1)(b).

The Hearing Officer went on to consider the matter under the proviso to Section 3(1). He concluded, however, that the evidence filed did not show that the mark had acquired a distinctive character either before registration or since. The application for invalidation under Section 47(1) therefore succeeded by virtue of Sections 3(1)(b) and (c) of the Act.

He did not go on to consider the matter under the other grounds cited.

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