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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> MIZZ (Trade Mark: Opposition) [2004] UKIntelP o14004 (10 May 2004) URL: http://www.bailii.org/uk/cases/UKIntelP/2004/o14004.html Cite as: [2004] UKIntelP o14004 |
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For the whole decision click here: o14004
Result
Section 5(2)(b) - Appeal dismissed.
Points Of Interest
Summary
This was an appeal to the Appointed Person of the Hearing Officer’s decision of 19 June 2003 (BL O/167/03). In that decision the Hearing Officer had found that the applicants had used their mark from 1985; that even though the opponents had claimed use from 1972 the evidence filed only confirmed (at best) limited sales from 1990 onwards and therefore while there had been concurrent use, such use was unlikely to have established an enhanced level of distinctiveness of their mark. The Hearing Officer went on to conclude that there appeared to be a practice of publishers adopting semi-descriptive marks as the names of magazines and they therefore had to accept that there might be some limited confusion in the market place if similar descriptive marks were chosen.
On appeal the opponents claimed that the Hearing Officer’s decision was somewhat contradictory in relation to concurrent use, the wording of the applicants’ specification and the lack of any claim to confusion in the marketplace.
The Appointed Person accepted that the Hearing Officer’s decision could have been more clearly worded but as she understood his decision he had logically followed the facts established by the evidence and had clearly instructed himself as to the application of Section 5(2)(b). In comparing the respective marks Ms (series of 5) and MIZZ the Hearing Officer had noted that the respective marks were visually different but orally and conceptually similar. However the Appointed Person believed the marks to be conceptually different in that Ms conveys a rather staid image whereas MIZZ conjures up something altogether zanier in relation to magazines. The Appointed Person went on to uphold the Hearing Officer's decision as regards the nature of the respective marks, trade practice of choosing semi-descriptive marks and the lack of any likelihood of confusion. Appeal dismissed.