Trade mark decision

BL Number

O/073/04

Decision date

22 March 2004

Hearing officer

Mr M Foley

Mark

ORANGE

Classes

29, 30

Applicant

Orange Personal Communications Services Limited

Opponent

Mars UK Limited

Opposition

Section 5(2)(b)

Result

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

Points Of Interest

• 1. Comparison of marks, where colour is a significant common feature.

Summary

The opponents cited a number of their registrations in the grounds of opposition, but they relied principally on two marks consisting of orange squares with blue devices on them.

The goods were identical or similar. The issue therefore came down to a comparison of the marks and an assessment of any likelihood of confusion.

Both the colour 'claim' of the applicants and the 'consists of' in the opponents' mark were 'limitations' decided the Hearing Officer, and in any comparison the elements or features to which the limitation applied must be accorded some significance, the degree depending on the distinctiveness that it contributed to the mark as a whole.

As none of the respective marks claimed shape as a feature, the Hearing Officer proceeded on the assumption that all could be used in the same way, be that square and bordered, or covering the entire surface of the packaging.

However, having considered the various similarities and differences in the mark, and having noted that the use of the colour orange gave some commonality to the marks, overall the Hearing Officer found no likelihood of confusion. The opposition failed accordingly.

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