Trade mark decision

BL Number

O/259/04

Decision date

24 August 2004

Hearing officer

Mr G Attfield

Mark

LONDON TURKCE BAR

Classes

42

Registered proprietor

Charles Robert Maxwell

Applicant for a declaration of invalidity

Andrew John Preston

Application for Invalidation

Section 47(2)(b) (citing Section 5(4)(b))

Result

Application for invalidation, Section 47(2)(b) (citing Section 5(4)(b) successful.

Points Of Interest

• 1. Copyright in the device element of a mark.

Summary

This was an undefended action but the presumption of validity enshrined in Section 72 prevented any summary removal of the registration. The Hearing Officer therefore went on to consider the case put forward by the applicant.

It appeared from the evidence that both applicant and registered proprietor had once occupied premises facing each other in a London street. The applicant had devised a sign for his premises which had been copied by the registered proprietor who had gone on to register it as a trade mark. The applicant claimed copyright in the device element of the mark, which was a representation of six guitar strings spanning the sound hole of a guitar. This element appeared also in the registration in suit.

The Hearing Officer was satisfied that an earlier right existed, (in this case copyright) and having compared the marks he agreed that the registered mark infringed that right. The evidence had not been challenged by the registered proprietor.

The application for invalidation succeeded accordingly.

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