Trade mark decision

BL Number

O/043/08

Decision date

15 February 2008

Hearing officer

Mr Geoffrey Hobbs QC

Mark

FIANNA FAIL FINE GAEL (two applications)

Classes

31, 35, 41

Applicants/Respondent

Patrick Melly (now using the name Patrick Gainsford O’Malley)

Opponents/Appellants

Fine Gael & Fianna Fail

Opposition

Appeal against the decision of the Registrar’s Hearing Officer in opposition proceedings

Result

Appeals successful (under Section 3(6))

Points Of Interest

• 1. Section 3(6): “Bad faith is an absolute, hence free-standing, ground for refusal of registration. It can be raised in relation to matters arising between applicants and third parties as well as between applicants and the Registrar”.
• 2. Costs in proceedings before the Registrar and before the Appointed Person : awards above the scale.
• 3. See also Bl O/212/07 & BL O/213/07.

Summary

At first instance (see BL O/212/07 & BL O/213/07) the Hearing Officer had dismissed the opposition under each of the grounds on which it had been brought. The opponents appealed to the Appointed person.

Following a detailed appraisal of the Hearing Officer’s decisions under Sections 3(3)(b) and 5(4)(a) (also Section 56) the Appointed Person upheld them and dismissed the appeals under those Sections. However, under Section 3(6), which could be raised on both absolute and relative grounds, the Appointed Person concluded that the Hearing Officer decision owed more to consideration of the ‘relative’ position than it did to a consideration of the ‘absolute’ position. The Appointed Person’s consideration of this latter aspect led him to find that the applications had indeed been made in bad faith. The appeals succeeded accordingly.

The Hearing Officer’s decision and costs orders were therefore set aside. The appellants requested awards of full costs in relation both to the opposition proceedings and the subsequent appeals. After due consideration, however, the Appointed Person made awards above the published scale but below the full costs registered.

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