Decision Nº O/004/14 from Intellectual Property Office - (Trade market), 7 January 2014
| Judge | Mr Daniel Alexander QC |
| Date | 07 January 2014 |
| Registration Number | UK00002409353 |
| Administrative Decision Number | O/004/14 |
| Court | Intellectual Property Office (United Kingdom) |
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O-004-14
IN THE MATTER OF REGISTRATION NO 2409353
IN THE NAME OF QUASAR MANUFACTURING LIMITED
OF THE TRADE MARK Q-ZAR IN CLASSES 25, 28 AND 41
AND THE APPLICATION FOR REVOCATION THERETO UNDER NO 84383
BY GEORGE FILIPPO RICOTTI
DECISION
INTRODUCTION
1. By a decision dated 11 March 2013, Mr David Landau, the hearing officer for the
Registrar revoked the registration of UK Trade Mark 2409353 Q-ZAR in respect of all goods
and services for which it was registered pursuant to Section 46(1)(a) of the Trade Marks Act
1994 (“the Act”).
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2. The decision was made on paper without an oral hearing. The proprietor had filed
evidence of use but the hearing officer held that the evidence was insufficient to establish that
there had been genuine use, having regard to the test in the case law of the CJEU.
3. The proprietor appeals on two grounds. First, it contends that the evidence has not been
properly evaluated and that the hearing officer ought to have held that sufficient use had been
shown. Second, the proprietor contends that the approach to assessment of use of the mark in a
particular form was wrong. The proprietor contends that even if the mark is not maintained for
all of the goods and services, there is sufficient evidence to establish use in respect of the
following goods in class 28 namely “electronically activated chest pack amusement games
utilizing electronic weapons and target apparatus for stimulation combat conditions.”
THE HEARING OFFICER’S DECISION
4. The hearing officer reviewed the evidence and referred to the relevant authorities
including Ansul on the overall approach, the well-known observations of Jacob J in Labratoires
Goemar on the need for particular care in ensuring that the evidence was sufficient to prove use
and Reckitt Benkiser v.OHIM (T-126-03) on the approach to determining the right scope of a
specification.
5. The hearing officer also referred to In Anheuser-Busch Inc v OHIM Case T-191/07 where
the General Court said:
“105 Moreover, the Court of First Instance has held that genuine use of a trade mark
could not be proved by means of probabilities or suppositions, but had to be
demonstrated by solid and objective evidence of effective and sufficient use of the trade
mark on the market concerned (Case T-39/01 Kabushiki Kaisha Fernandes v OHIM –
Harrison (HIWATT) [2002] ECR II-5233, paragraph 47).”
6. As to the question of whether use of the mark differed from the registered trade mark in
elements which did not alter the latter’s distinctive character (see section 46(2) of the Act) he
referred correctly to the guidance of the Court of Appeal in Budejovicky Budvar Narodni Podnik
v. Anheuser Busch Inc. [2003] RPC 25 and of the Appointed Person (Richard Arnold QC) in
Boura v. Nirvana Spa & Leisure Ltd BL O/262/06. This says that it is for the hearing officer to
analyse the mark and make a global appreciation of its likely impact on the average consumer
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