Trade mark decision

BL Number

O/477/01

Decision date

1 November 2001

Hearing officer

Mr M Foley

Mark

HPMC-OPHTAL

Classes

05

Applicants

Dr Robert Winzer Pharma GmbH

Opponents

Alcon Pharmaceuticals Limited

Opposition

Sections 1(1); 3(1)(a); 3(1)(b); 3(1)(c); 3(1)(d) & 3(4)

Points Of Interest

• The relevant consumer would ‘most likely be a medical professional’; the mis-spelling of OPHTAL would be ‘quite apparent’ to such a consumer and would alert him to the fact that the mark is ‘a badge of origin rather than a mere description’.

Summary

It was not disputed that HPMC is a well known acronym for Hydroxypropylmethylcellulose. The opponents further asserted that OPHTAL was the equivalent of the descriptive abbreviation OPHTHAL. The Hearing Officer however concluded that whilst there was evidence that HPMC is used in the trade in relation to the goods of the application, there was nothing to show that OPHTAL (or OPHTHAL) either on its own or in combination with HPMC was so used or has such a descriptive meaning as in WELDED MESH so as to be incapable of registration. He therefore dismissed the grounds under Section 1(1), 3(1)(a) and 3(1)(d). Neither did he find the mark incapable of acting as a badge of origin. The grounds under Section 3(1)(b) and 3(1)(c) also failed. The Hearing Officer could find no rule of law likely to prohibit use of the mark and the Section 3(4) ground failed accordingly.

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URL: http://www.bailii.org/uk/cases/UKIntelP/2001/o47701.html