Trade mark decision

BL Number

O/254/02

Decision date

25 June 2002

Hearing officer

Mr A James

Mark

HAVE A BREAK

Classes

30

Applicants

Societe des Produits Nestle SA

Opponents

Asda Stores Limited:

Opposition

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

Result

Section 3(1): - Opposition dismissed.

Section 3(3): - Opposition dismissed.

Section 5(2)(b): - Opposition failed

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

Points Of Interest

• 1. See also a second opposition against this mark by Mars Limited (BL O/232/02). In that case opposition was successful under Section 3.

Summary

The essential ground considered by the Hearing Officer was under Section 5(2)(b), where the opponents opposition was based on their registered mark ASTA TAKEABREAK. The element TAKEABREAK was disclaimed and following earlier decisions the Hearing officer concluded that as this was the only element similar to the mark applied for, the opposition must fail on ths ground.

The applicants mark had proceeded to advertisement on the basis of distinctiveness acquired through use and on the basis of Honest Concurrent Use in the face of the opponents registered mark. However, in opposition the conflict had to be dealt with on a normal and fair basis.

The grounds under Sections 3(1), 3(3) and 5(4)(a) were dismissed by the Hearing Officer since these grounds were not supported by the evidence filed by the opponents.

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