Sunrider Corporation (t/a Sunrider International) v Vitasoy International Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warren |
| Judgment Date | 31 January 2007 |
| Neutral Citation | [2007] EWHC 37 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH/2006/APP/0484 |
| Date | 31 January 2007 |
2007] EWHC 37 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
ON APPEAL FROM THE REGISTRAR OF TRADE MARKS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warren
Case No: CH/2006/APP/0484
Mr Simon Malynicz (instructed by Messrs J A Kemp & Co.) for the Appellant
Mr Robert Onslow (instructed by Messrs Field Fisher Waterhouse LLP) for the Respondent
Hearing date: 22nd January 2007
Supplemental Judgment
Following the judgment which I handed down on 22 January 2007, I now need to deal with the relief which ought to be granted. I have received some further written submissions.
The first issue relates to the extent to which the VITALITE class 32 mark should be allowed to stand. It is accepted by Mr Onslow for Vitasoy that both herbal drinks and syrups (or other preparations) for making herbal drinks should remain in the specification. In the light of observations I had made in my draft judgment (which did not appear in the final judgment) Mr Malynicz says that syrups which are not for making into beverages at all should also be allowed to remain. Whilst not seriously challenging the view that such a syrup is not similar to a drink within the VITA class 32 specification, Mr Onslow submits that such a syrup is not within class 32 in the first place and therefore such a syrup should not be placed in the VITALITE class 32 specification.
The basis for that submission is that class 32 is concerned with drinks and preparations for making drinks. A syrup which is not one to be used for making drinks could not be within "Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages". Mr Onslow gives examples of various products which might be thought of as syrups and places them in other classes: thus syrups for cough medicines go in class 5; honey and treacle go in class 30, together with "sauces (condiments)" which would take in maple syrup; jams go in class 29; and malt extract in class 5. He notes that there is nothing in the evidence about this at all.
Mr Malynicz says that there is no "right" class for syrups ( ie syrups other than for making beverages) at all. If syrups for making herbal drinks are within class 32, there is, he says, nothing wrong with leaving syrups as a whole in that class as there is no self-evidently better class.
The real question it seems to me is not the slightly abstract question whether a syrup other than for making a beverage could ever be placed in class 32, but whether the original, wide, VITALITE class 32 specification includes such a syrup. If it does not, then such a syrup must remain outside any revised specification and care must be taken to ensure that the drafting of the new specification does not accidentally...
To continue reading
Request your trial
-
Anheuser-Busch Inc. v Budejovicky Budvar N.P., B & S Foods Aktiebolag and Birra Mex Aktiebolag
...to take it over. That hardly sounds right. 53 Finally I should mention briefly Warren J's first instance decision of Sunrider Corp. v Vitasoy International [2007] EWHC 37 (Ch) which was followed and agreed with by Norris J in this case. All I wish to say is that the arguments in that case ......
-
Anheuser-Busch Inc. v Budejovicky Budvar N.P., B & S Foods Aktiebolag and Birra Mex Aktiebolag
...But what stands directly in the way of an acceptance of Mr Mellor QC's submission is the decision of Warren J. in Sunrider Corporation v Vitasoy International Holdings Ltd [2007] EWHC 37(Ch). Sunrider was the registered proprietor of the mark “Vitalite”, for which it had applied in 1993 and......
-
Future Enterprises Pte Ltd v McDonald's Corporation
......] 2 SLR 690 (refd) Richemont International SA v Goldlion Enterprise (Singapore) Pte Ltd ......
-
Ozone Community Corporation v Advance Magazine Publishers Inc.
...This prudent approach has been unequivocally endorsed in the recent case of Sunrider Corporation v Vitasoy International Holdings Ltd [2007] EWHC 37 (Ch) (at [10]).Such an approach is consistent with established principles relating to appeals from tribunals that are not in the nature of a r......