Trade mark decision

BL Number

O/308/00

Decision date

23 August 2000

Hearing officer

Mr G Salthouse

Mark

McBAIN

Classes

32

Applicants

Royal Jubilee Whiskies Limited

Opponents

McCain Foods (GB) Limited

Opposition

Section 5(2)(b)

Result

Section 5(2)(b) - Opposition failed

Points Of Interest

• 1. Confirmation of earlier decisions that beer in Class 32 and spirits in Class 33 are similar goods.
• 2. When comparing surnames one must bear in mind that in real life small differences in spelling or phonetics enable the public to distinguish between two or more similar names.

Summary

The opponent did not file any evidence nor did the applicant file a counterstatement or evidence. The opposition was therefore only allowed to proceed on the Section 5(2)(b) ground where the opponent relied upon two registrations for the marks McCain and McCain and device in Class 32.

As regards the respective goods - beer in Class 32 and spirits in Class 33 - the Hearing Officer concluded that they were similar, taking account of the tests set down in the TREAT case.

As regards the respective marks the Hearing Officer was of the view that both would most likely be seen as surnames and he decided that the difference of the initial letter in the two words meant that it was unlikely that they would be confused. Opposition failed.

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