Trade mark decision

BL Number

O/066/02

Decision date

15 February 2002

Hearing officer

Mr S P Rowan

Mark

CAMORIS

Classes

03, 21

Applicant

Lidl Stiftung & Co KG

Opponent

Avon Products Inc

Opposition

Sections 5(2)(b) & 5(4)(a)

Result

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

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

Points Of Interest

• 1. At examination stage the opponents' mark AVON COMORES had been raised as an objection under Section 5(2)(b). On appeal to the Appointed Person the objection had been waived on the basis that COMORES would be recognised as a geographical name and thus not a distinctive element in the composite mark. In these proceedings the Hearing Officer noted the Appointed Person’s decision but decided that in the context of opposition proceedings, where both parties had filed evidence, the Appointed Person’s decision could have no bearing on his decision.
• 2. The applicants appealed the Section 5(2)(b) decision to the Appointed Person. In his decision dated 127 September 2002 (BL O/400/02) the Appointed Person upheld the Hearing Officer's decision.

Summary

The opponents opposition was based on their ownership of a registration for the mark AVON COMORES in Class 3, which had been applied for on 18 March 1996 and registered on 15 November 1996. The applicants' mark was applied for on 2 October 1996. The opponents also claimed to have commenced use of their mark in October 1996 but in the context of Section 5(4)(a) - Passing Off - were unable to show that they had a reputation in their mark at the relevant date ie 2 October 1996. The opponents thus failed in this ground of opposition.

Under Section 5(2)(b) the Hearing Officer noted that in relation to the applicants Class 3 application identical goods were at issue. Having considered the respective goods in Classes 3 and 21 the Hearing Officer determined that such goods were similar. In relation to the respective marks there was much debate as to whether the COMORES element of the opponents mark was a well known geographical name and secondly that the Comores Islands is well known as a source for perfume essence. Both parties filed evidence in relation to these matters but the Hearing Officer determined that registration of the opponents mark was prima facie evidence that it was a distinctive mark and there was thus an onus on the applicants to show that this was not the case. The applicants' evidence showed that the COMORES or COMORES ISLANDS was advertised as a holiday location and that they were a source of perfume essence. However, this was insufficient to convince the Hearing Officer that the average purchaser of these goods would recognise the word COMORES as being geographical or that they would know that perfume essence comes from that area. The Hearing Officer thus went on to compare the respective marks on the basis that COMORES was distinctive for the goods at issue.

In comparing the respective marks the Hearing Officer took note of the fact that AVON would be widely recognised as a house mark. It was thus important to compare COMORES and CAMORIS which he found to be very similar. Comparing the marks as wholes he believed that the average consumer on seeing the mark CAMORIS for the same and similar goods for which AVON COMORES is registered could well believe that such goods were from the same or an economically linked undertaking. Opposition succeeded on this ground.

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