Trade mark decision

BL Number

O/359/01

Decision date

15 August 2001

Hearing officer

Dr W J Trott

Mark

AQUA MAX OXYGEN ENRICHED WATER

Classes

32

Applicant

Millway Enterprises Limited

Opponent

Pepsi Co Incorporated

Opposition

Sections 3(6); 5(2)(b) & 5(4)(a)

Result

Section 3(6): - Opposition dismissed.

Section 5(2)(b): - Specification amended.

Section 5(4)(a): - Opposition failed.

Points Of Interest

• ‘Family’ of marks - part of ‘global’ assessment and a relevant factor.

Summary

The opposition was based on the opponents’ registrations of MAX and PEPSI MAX, registered in Class 32. At a late stage in the proceedings the opponents sought to amend these statement of grounds and file further evidence, relating to the objection under Section 3(6). The Hearing Officer refused this request, and he went on to dismiss the ground in its entirety, since no other evidence had been filed relative to it. Under Section 5(2)(b), after dealing with submissions concerning a "family of marks", the Hearing Officer found little similarity in the goods of the opponents’ MAX mark and the goods applied for other than flavoured spring waters. He proposed to exclude these from the registration applied for. In the case of the PEPSI MAX mark he found confusion with AQUA MAX to be unlikely. Under Section 5(4)(a) he considered deception leading to passing off to be unlikely. The application was allowed to proceed with the exclusion "none of the aforesaid goods being flavoured". He awarded costs in favour of the applicants.

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