Trade mark decision

BL Number

O/034/05

Decision date

4 February 2005

Hearing officer

Mr G Salthouse

Mark

EXCEL

Classes

12

Applicant

Professional Cycle Manufacturing Limited

Opponent

Halfords Limited

Opposition

Section 5(2)(b)

Result

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

Points Of Interest

• The applicant appealed to the Appointed Person. The opponent cross-appealed in respect of the mark EXEL as raised in grounds of opposition. Appointed Person dismissed appeal and allowed cross-appeal. Decision dated 31 July 2005 (BL O/238/05).

Summary

The opponent owns a registration in the UK for the mark APOLLO EXCEL in respect of identical goods to those of the applicant.

The applicant had filed evidence of use and proceeded to advertisement on the basis of “honest concurrent use” with the opponent’s mark. The opponent filed a copy of this evidence to show that the applicant had not used the mark EXCEL alone but had in fact used it in conjunction with other marks in the style EXCEL STARBURST, EXCEL REVOLUTION, EXCEL SNAKEBITE, EXCEL BLISS etc. Also based on the applicant’s turnover figures it had only about 1% of the UK market in bicycles. The opponent provided no evidence of use of its mark.

Under Section 5(2)(b) the Hearing Officer compared the respective marks EXCEL and APOLLO EXCEL on the basis that identical goods were at issue. As one element of the opponent’s mark was identical to the applicant’s mark the Hearing Officer considered the marks to be similar and he believed that the public could well be confused into believing that the goods of the applicant were those of the opponent or some undertaking linked to it. The evidence of the applicant’s use did not assist as the mark filed was not in fact the mark used.

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URL: http://www.bailii.org/uk/cases/UKIntelP/2005/o03405.html