Trade mark decision

BL Number

O/264/02

Decision date

4 July 2002

Hearing officer

Mr D Landau

Mark

FAERIES

Classes

09, 16, 25, 28, 41

Applicants

Hit Entertainment Plc

Opponents

Stevens Hewlett & Perkins

Opposition

Section 5(2)(b)

Result

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

Points Of Interest

• 1. Opposition : In this case the opponents were a firm of Patent & Trade Mark Agents. Nothing turned on this since anyone may oppose an application for registration.
• 2. The applicants referred to ‘State of the Register’ in their evidence supporting the application. As has been noted many times previously such evidence is not persuasive in opposition proceedings. It is what is taking place in the marketplace which counts.

Summary

The opponents opposition was based on their ownership of a Community registration for the mark THE FAIRIES and star devices in Classes 9, 16, 25, 28 and 41. The opponents excepted sunglasses and spectacle frames in the applicants Class 9 specification from their opposition. The applicants contested the fact that "Computer software and computer software concerned with children’s education and/or entertainment" were similar to the opponents’ goods. After comparing the respective goods the Hearing Officer determined that they were in fact similar.

Under Section 5(2)(b) the Hearing Officer noted that identical and similar goods were at issue. In comparing the respective marks the Hearing Officer focussed on the dominant elements using the words FAERIES and THE FAIRIES and considered them to be very similar indeed since they were aurally and conceptually identical. He also considered them visually similar. The opponents thus succeeded in their opposition.

If amended the application would be allowed to proceed for the uncontested goods.

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