Trade mark decision

BL Number

O/384/01

Decision date

6 September 2001

Hearing officer

Mr D Morgan

Mark

ASPA

Classes

25

Applicant

Michael Spahn

Opponent

Asda Stores Limited

Opposition

Sections 3(1)(a) & (b), 3(3), 3(4), 3(6), 5(2)(b), 5(3), 5(4) & 56

Result

Sections 3(1)(a) & (b) - Opposition failed.

Section 3(3) - Opposition failed.

Section 3(4) - Opposition failed.

Section 3(6) - Opposition failed.

Section 5(2)(b) - Opposition successful.

Section 5(3) - Opposition failed.

Section 5(4) - Not decided.

Section 5(4) - Opposition failed.

Points Of Interest

• Concurrent Use: The applicant claimed modest use from 1992 to 1997 (the date of application) and pointed to a lack of confusion in the marketplace. However, the mere fact of concurrent use is insufficient to dispute an opposition under Section 5(2). To have any chance of success the applicant must provide detailed evidence bearing on the likelihood of confusion between the conflicting marks.

Summary

The essential ground of opposition was under Section 5(2)(b) and, as identical and very similar goods were at issue, the dispute rested on a comparison of the dominant element in the applicant’s mark ASPA with the opponents mark ASDA. The Hearing Officer considered that the respective marks were similar both visually and orally and, taking account of the distinctiveness of the opponents mark and imperfect recollection, considered that there was a real likelihood of confusion.

The Hearing Officer dealt only briefly with the remaining grounds since he noted that in some instances, no evidence had been filed to support the grounds claimed and, in others, that the opponent was in no better position than under Section 5(2)(b).

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URL: http://www.bailii.org/uk/cases/UKIntelP/2001/o38401.html