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United Kingdom Intellectual Property Office Decisions |
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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> EBC (Trade Mark: Opposition) [2003] UKIntelP o21503 (16 July 2003) URL: http://www.bailii.org/uk/cases/UKIntelP/2003/o21503.html Cite as: [2003] UKIntelP o21503 |
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For the whole decision click here: o21503
Result
Section 5(4)(a) - Appeal unsuccessful.
Points Of Interest
Summary
At first instance (see BL O/403/02) the Hearing Officer had found the opponents unsuccessful under all absolute grounds but partially successful under Section 5(4)(a). The applicant appealed against the latter finding.
It was submitted that the Hearing Officer had erred in not giving separate consideration to the question of misrepresentation, but had stated that "misrepresentation and damage must follow the confirmation of goodwill". Counsel for the applicant contended that whilst these may follow where goodwill is established and the mark and goods are the same, it is not always the case. This wrong assumption had led the Hearing Officer to ignore the applicant’s previous registration of the mark and his use thereof.
The Appointed Person agreed that the Hearing Officer had erred, and a re-hearing, rather than review was appropriate on that aspect. A review of the Hearing officer’s decision on the other aspects of the Section 5(4)(a) objection confirmed its rightness. A reconsideration of the misrepresentation finding showed, however, that the applicant had not discharged the burden of rebutting the prima facie case, and the original finding was therefore confirmed. The Appointed Person confessed a difficulty in determining the case but finally dismissed the appeal.
