Trade mark decision

BL Number

O/287/99

Decision date

24 August 1999

Hearing officer

Mr D Landau

Mark

ADRENALIN

Classes

03

Proprietors

Mr N D Gracey & Mrs E Gracey

Applicant for Revocation

Unilever Plc

Revocation

Section 46 and request for discovery under Rules 51 and 52(1) of the Trade Mark Rules 1994 (as amended)

Result

Rules 51 & 52(1) - Request for discovery refused

Points Of Interest

• 1. The proprietors appealed to the Appointed Person. In his decision under BL O/475/99 the Appointed Person upheld the Hearing Officer and dismissed the Appeal.

Summary

Following an interlocutory hearing, the Hearing Officer refused the proprietors' request for discovery in two areas, namely (a) who undertook investigations in relation to use of the mark in suit, and when and with what result, and (b) the support for the applicant's deponent's opinion as to the grounds of non-use submitted by the proprietors.

In his statement of grounds for his decision, the Hearing Officer explained that the proprietors had confirmed non-use of the mark in suit, and had failed to furnish evidence of use in accordance with Rule 31(3). In his view, therefore, it could not be of evidential materiality, or necessary to dispose of the proceedings, to ascertain details of the investigation that took place as to use of the mark in suit. Furthermore, in the circumstances of this case, he regarded the request as to (a) as a 'fishing expedition'. (P v T Ltd distinguished).

The opinion of the applicant's deponent was not a matter open to discovery

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