Trade mark decision

BL Number

O/242/02

Decision date

7 May 2002

Hearing officer

Mr S Thorley QC

Mark

A TO ZINC

Classes

05

Registered Proprietors/Appellants

Laboratories Arkopharma SA

Opponents/Respondents

American Cyanamid

Appeal against the Decision of the Registrar’s Hearing Officer in Revocation Proceedings

Result

Appeal dismissed

Points Of Interest

• 1. Notice of appeal : requirements under Rule 63.
• 2. ‘Genuine use’.
• 3. Section 100; level of proof required is normal civil standard ie balance of probabilities.

Summary

By his decision of 14 August 2001 (BL O/347/01) the Registrar’s Hearing Officer had ordered partial revocation of the registration in suit. The registered proprietor appealed to the Appointed Person. Dealing, first with a challenge from the respondents that the notice of appeal had not been in compliance with the requirements of Rule 63, the Appointed Person found that it had, just. The High Court decisions amplifying and clarifying the requirements for an appeal from the Trade Marks Registry had issued only just prior to the notice of appeal, and it would not be just to rule out the notice for not fully reflecting those requirements.

Turning to the substantive appeal, the Appointed Person was satisfied that there was no evidence of use, and dismissed the appeal. Had he been satisfied that there was some ‘minimal’ evidence of use, he would have considered a stay of proceedings pending the result of the reference to the ECJ in the LA MER case (q.v.) for a ruling on the meaning of ‘put to genuine use’.

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