Trade mark decision

BL Number

O/219/04

Decision date

23 July 2004

Hearing officer

Mr A James

Mark

BOOTS GIFT EXPERIENCE

Classes

41

Applicant

The Boots Company PLC

Opponent

Red Letter Days PLC

Opposition

Section 5(2)(b)* (*grounds under Sections 3(6) and 5(4)(a) were also pleaded but subsequently withdrawn)

Result

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

Points Of Interest

• 1. 'house' marks: not always enough to avoid confusion but "the descriptive nature of 'gift experiences' (was) a factor which points away from miss-association in this case".
• 2. Comparison of the marks EXPERIENCE GIFTS v BOOTS GIFT EXPERIENCES.

Summary

The opposition was based on CTM registrations of the marks EXPERIENCE and EXPERIENCE GIFTS in Classes 16 and 36, and Classes 16, 25, 36, 39, 41, 42, 43 and 44 respectively.

The Hearing Officer found both identical (Class 44) and similar (Class 36) services to be involved. He also found the terms 'experience', 'experience gifts' and 'gift experiences' descriptive of services intended to be given as gifts and which comprised pre-paid entertainment experience in the form of activity days out. The opponent's marks had not acquired a level of enhanced distinctiveness, and the evidence had shown only generic use in conjunction with the marks RED LETTER DAYS.

The Hearing Officer first compared the marks EXPERIENCE GIFTS and BOOTS GIFT EXPERIENCES. He did not think it would be right to attach no weight to the fact that common words appeared in a different order, neither did he feel that the presence of a house mark in the opposed mark was without significance in this case.

In the result he found no likelihood of confusion; the case involving the opponent's other mark EXPERIENCE was no stronger, in fact it was slightly weaker.

The opposition failed accordingly.

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