Neutral Citation Number:  [2015] EWHC 3450 (Ch)
Case No: Ch/2015/0238

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
ON APPEAL FROM 
THE REGISTRAR OF TRADE MARKS
Case No O-180-15

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL

Date: 8 December 2015

Before :
MR JOHN BALDWIN QC
(sitting as a Judge of the Chancery Division)
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Between :
	ENVIROTECNIC	Appellant	
			
	- and –
		
	GUTTERCLEAR UK LIMITED 
	Respondent	
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Kelvin Jones (instructed by Direct Access) for the Appellant 
Mr David Dixon, company director, spoke with the permission of the court on behalf of the Respondent 

Hearing date: 19th November 2015
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Judgment
1.	This is an appeal against the decision of Hearing Officer Ms Ann Corbett, acting for the Registrar, dated 16 April 2015 in which, having reviewed the papers and without the parties having asked for a hearing, she dismissed an application pursuant to section 47 of the Trade Marks Act (the Act) for a declaration of invalidity of trade mark registration no 2656102 (the Trade Mark) in the name of Gutterclear UK Ltd.   The Trade Mark is for this sign:   and it is registered as of 13 March 2013 in class 37 in respect of “Commercial, industrial & residential cleaning services. Cleaning equipment rental services.”  It is important for anyone reading this judgment in monochrome to be aware that the representation of the sign is in colour.
2.	The application was based upon two grounds:
(i)  Under section 5(2)(b) of the Act on the basis that the applicant has an earlier Community trade mark no 8475221 (the CTM) which is a similar mark and for similar goods or services and there is a likelihood of confusion between the respective marks;
(ii)  Under section 3(6) of the Act on the basis that the Trade Mark was applied for in bad faith.

3.	The CTM is for the sign: Gutter-Clear and it is registered as of 6 August 2009 in class 19 in respect of “Non-metal rain gutter filters in the nature of foam inserts for maintaining gutters and downspouts.”
4.	The Hearing Officer dismissed the application because she found that (a) there was no likelihood of either direct or indirect confusion ([39] of judgment) and (b) Gutterclear UK Ltd did not act in bad faith in filing its trade mark application but instead took a reasonable action that any business would take to preserve its position ([50] of judgment).
5.	The following are the relevant statutory provisions:
s47.   Grounds for invalidity of registration.
 (1) The registration of a trade mark may be declared invalid on the ground that the trade mark was registered in breach of section 3 or any of the provisions referred to in that section (absolute grounds for refusal of registration).
     ...
(2) The registration of a trade mark may be declared invalid on the ground—
(a) that there is an earlier trade mark in relation to which the conditions set out in section 5(1), (2) or (3) obtain, or
(b) that there is an earlier right in relation to which the condition set out in section 5(4) is satisfied,
unless the proprietor of that earlier trade mark or other earlier right has consented to the registration. 
...
(5) Where the grounds of invalidity exist in respect of only some of the goods or services for which the trade mark is registered, the trade mark shall be declared invalid as regards those goods or services only.

s3.   Absolute grounds for refusal of registration.
	.......
(6) A trade mark shall not be registered if or to the extent that the application is made in bad faith.

s5.  Relative grounds for refusal of registration.
 (1) ....
(2 )  A trade mark shall not be registered if because—
         (a)...
         (b)   it is similar to an earlier trade mark and is to be registered for goods or services identical with or similar to those for which the earlier trade mark is protected,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark.  
s6.  Meaning of “earlier trade mark”.
 (1) In this Act an “earlier trade mark” means—
(a) a registered trade mark, international trade mark (UK) or Community trade mark which has a date of application for registration earlier than that of the trade mark in question, taking account (where appropriate) of the priorities claimed in respect of the trade marks,
(b) a Community trade mark which has a valid claim to seniority from an earlier registered trade mark or international trade mark (UK), or
(c)....

6.	The Respondent’s business is solely concerned with clearing gutters and, accordingly, should the appeal succeed, there was no interest in relying on section 47(5) to save any part of the registration.  
7.	The relevant law is not controversial.  The essential function of a trade mark is set out in Libertel C-104/01:
62.  It is settled case law that the essential function of a trade mark is to guarantee the identity of the origin of the marked goods or services to the consumer of end use by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin (see Canon, ¶28, and Case C-517/99 Merz & Krell [2001] E.C.R. I-6959, ¶22).  A trade mark must distinguish the goods and services concerned as originating from a particular undertaking.  In that connection, regard must be had both to the ordinary use of trade marks as a badge of origin in the sectors concerned and to the perception of the relevant public.
8.	When considering the likelihood of confusion it is necessary to consider use of the Trade Mark in connection with gutter cleaning services and gutter cleaning equipment rental services, it being conceded that these were the services most similar to the goods for which the CTM is registered.
9.	The factors to be considered in assessing whether or not there is a likelihood of confusion have been the subject of a number of decisions and have been repeated many times.  No objection was taken to the summary set out by the Hearing Officer in [13] of her judgment:
13. The factors to be considered under this ground have been the subject of a large number of cases before the Courts. In determining whether there is a likelihood of confusion between the respective parties’ marks, I look to certain principles which are gleaned from the following decisions of the EU courts: Sabel BV v Puma AG, Case C-251/95, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc, Case C-39/97, Lloyd Schuhfabrik Meyer & Co GmbH v Klijsen Handel B.V. Case C-342/97, Marca Mode CV v Adidas AG & Adidas Benelux BV, Case C-425/98, Matratzen Concord GmbH v OHIM, Case C-3/03, Medion AG v. Thomson Multimedia Sales Germany & Austria GmbH, Case C-120/04, Shaker di L. Laudato & C. Sas v OHIM, Case C-334/05P and Bimbo SA v OHIM, Case C-591/12P. 
The principles are: 
(a) The likelihood of confusion must be appreciated globally, taking account of all relevant factors; 
(b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question; 
(c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; 
(d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; 
(e) nevertheless, the overall impression conveyed to the public by a composite trade mark may be dominated by one or more of its components; 
(f) however, it is also possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; 
(g) a lesser degree of similarity between the goods or services may be offset by a great degree of similarity between the marks, and vice versa; 
 (h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; 
(i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; 
(j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; 
(k) if the association between the marks creates a risk that the public might believe that the respective goods or services come from the same or economically-linked undertakings, there is a likelihood of confusion.
10.	The correct approach to appeals from the Registrar was set out by Mr Alexander QC in Digipos Store Solutions v Digi International  [2008] EWHC 3371 (Ch):
 5. It is important at the outset to bear in mind the nature of appeals of this kind. It is clear from Reef Trade Mark [2003] RPC 5 ("Reef") and BUD Trade Mark [2003] RPC 25 ("BUD") that neither surprise at a Hearing Officer's conclusion nor a belief that he has reached the wrong decision suffice to justify interference by this court. Before that is warranted, it is necessary for this court to be satisfied that there is a distinct and material error of principle in the decision in question or that the Hearing Officer was clearly wrong (Reef). As Robert Walker LJ (as he then was) said:
"…an appellate court should in my view show a real reluctance, but not the very highest degree of reluctance to interfere in the absence of a distinct and material error of principle" (Reef, para. 28)
6. This was reinforced in BUD, where the Court of Appeal made it clear that it preferred the approach of the appellate judge but nonetheless held that there was no error of principle justifying departure from the Hearing Officer's decision. As Lord Hoffmann said in Biogen v. Medeva [1997] RPC 1 at 45, appellate review of nuanced assessments requires an appellate court to be very cautious in differing from a judge's evaluation. In the context of appeals from the Registrar relating to section 5(2)(b) of the Act, alleged errors that consist of wrongly assessing similarities between marks, attributing too much or too little discernment to the average consumer or giving too much or too little weight to certain factors in the multi-factorial global assessment are not errors of principle warranting interference. 
11.	Mr Jones, who appeared for the appellant, accepted that this was the right approach. His response was that the court could be satisfied there was a distinct and material error of principle and that the Hearing Officer was clearly wrong.  In relation to the s.5(2)(b) attack Mr Jones identified what he submitted were two material errors.  The first was that, when considering the likelihood of confusion, the Hearing Officer had not considered that question in the context of a notional and fair use of the CTM and a notional and fair use of the Trade Mark as she was required to do (see e.g. Maier v Asos [2015] EWCA Civ 220 at [177]). The second was that, when considering the similarity of the respective signs, the Hearing Officer had wholly failed to appreciate the overwhelming conceptual similarity between them.  
12.	In relation to the s.3(6) attack, Mr Jones submitted that the true intention of Gutterclear UK Ltd, at the time it filed its application which matured into the registration in suit, was to contrive matters such that Appellant would not realise what was going on until it was too late and would lose the opportunity to oppose the application prior to registration.  That opposition would have been based on the Appellant’s earlier right and s.5(2)(b), i.e. an identical attack to that which is being made on this application for a declaration of invalidity.
13.	Mr Jones submitted that I could not exclude the possibility that an opposition might also have been based on one of the absolute grounds for refusal of a registration in s.3 of the Act, and that his client was genuinely disadvantaged by losing the opportunity to oppose pre-registration.  However, the absence of such an attack in these proceedings, there being no suggestion of any distinctiveness having been acquired by use, establishes that the point is without any merit.
The likelihood of confusion objection
14.	When I saw the papers in this appeal I wondered how it was that the Appellant had succeeded in registering Gutter-Clear as a trade mark for filters whose function is to keep gutters clear, especially since there was no evidence of use from which distinctiveness could have been acquired.  The following passage from Doublemint (OHIM v Wrigley,  Case C-191/01 P) appeared relevant:
29.     Article 7(1)(c) of Regulation No 40/94 provides that trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering of the service, or other characteristics of the goods or service  are not to be registered. 
30.     Accordingly, signs and indications which may serve in trade to designate the characteristics of the goods or service in respect of which registration is sought are, by virtue of Regulation No 40/94, deemed incapable, by their very nature, of fulfilling the indication-of-origin function of the trade mark, without prejudice to the possibility of their acquiring distinctive character through use under Article 7(3) of Regulation No 40/94. 
31.     By prohibiting the registration as Community trade marks of such signs and indications, Article 7(1)(c) of Regulation No 40/94 pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks (see, inter alia, in relation to the identical provisions of Article 3(1)(c) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Windsurfing Chiemsee, paragraph 25, and Joined Cases C-53/01 to C-55/01 Linde and Others [2003] ECR I-3161, paragraph 73). 
32.     In order for OHIM to refuse to register a trade mark under Article 7(1)(c) of Regulation No 40/94, it is not necessary that the signs and indications composing the mark that are referred to in that article actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned. 
15.	These paragraphs suggested there might be difficulties in registering either the Trade Mark or the CTM but, since both marks have proceeded to registration, any such difficulties appear not to have troubled either the IPO or OHIM. 
16.	At the hearing of the appeal, Mr Dixon, a director of the Respondent, sought permission to make observations to the court and I granted that permission.  He said this his company did not seek any rights in the sign Gutterclear per se but that the Trade Mark was his company’s logo and it was the expression of the particular sign or image which is the subject of the registration for which his company sought protection.  He could have pointed out that, since the Trade Mark is an image in particular colours, the rights granted by the registration will be limited accordingly (as explained by Jacob LJ in Phones4U [2006] EWCA Civ 244).
17.	Before the Hearing Officer the Respondent had adduced evidence from a Ms Shorter who was an administrator on behalf of a GutterClear scheme, which is a system for accrediting contractors to work clearing gutters at all places of worship in the Diocese of Gloucester.  Ms Shorter exhibited some of her internal correspondence which followed a complaint made by the Appellant based on the CTM.  The correspondence included the sentence “So the real value to us [of using the term GutterClear] is really that it is a useful shorthand term for [the service we run]”.  I can understand Ms Shorter’s concern.  Trade marks are not intended to prevent honest traders from using descriptive terms descriptively.  
18.	There was also evidence of a company in the North East trading as Gutter Clear North East Ltd.  Apparently this is one of the leading gutter clearing companies in and around Newcastle. I was told that objection was and would not be taken by the Appellant to its trading since it was only operating in the North East. This is another illustration of honest traders wanting to use the sign Gutter Clear in connection with gutter clearing services and the explanation of why objection is not taken does not seem to me to be very satisfactory.  There would appear to be no good reason why this company might not wish to expand outside the North East.
19.	However these matters may not be a relevant consideration before me since the CTM has been registered, and the issue on the appeal is whether or not the Trade Mark should continue to be registered in view of s.5(2)(b) and the Hearing Officer’s conclusions.  Moreover and in any event, the Trade Mark is not for the sign Gutterclear; it is a coloured image mark of which that descriptive expression forms a part.
20.	I turn now to the two errors of principle which Mr Jones relied on, the first being in relation to assessing confusion in the context of use made of the marks.  He pointed to [25] of the judgment, being the only paragraph where this point is dealt with, and submitted that no attention at all had been paid to how the goods or services might be advertised. In [25] the Hearing Officer said this:
25. As indicated above, cleaning services and the rental of cleaning equipment are services which may be bought by businesses or by the general public. Cleaning services may be highly specialised e.g. the deep cleaning of a hospital theatre or commercial kitchen or may be more general e.g. the cleaning of domestic carpets or windows. The purchasing process is equally wide, with the more specialised cleaning services likely to be purchased following e.g. pre-contract negotiation setting out the standards and timescale to be met whereas the more general are likely to be made with an eye to convenience. Even for the more general services such as gutter cleaning services, at least an average degree of care in their purchase is likely to be taken to ensure they meet the purchaser’s needs in terms of what work is to be done, when and by whom and at what cost. Rental services are also likely to be purchased with at least an average degree of care so as to ensure the customer rents the correct equipment and knows what ancillary materials he might need to purchase to suit the job which he intends to carry out and which are compatible with that equipment. The applicant’s goods are likely to be bought by self-selection from a display in store or online and again, will involve an average degree of care to ensure they are suitable for and fit his particular guttering and to establish how they are fitted. The respective goods and services are unlikely to be a purchase made on a daily basis but they are widely available and likely to come to the purchaser’s attention in ways that mean the visual considerations are of most relevance though I do not discount the fact that aural considerations come into play given that they may be subject of recommendations from others.
21.	Mr Jones submitted that notional and fair use included everyday type advertising and that if consumers of a Gutter-Clear filter saw an advertisement for the Respondent’s gutter cleaning services under the Trade Mark they were bound to think the goods and services were connected, and the visual differences between the two marks were by no means sufficient to eliminate the risk of that.
22.	The second error relied on by Mr Jones was in relation to the conceptual similarity of the signs.  The Hearing Officer dealt with the comparison between the respective marks in paragraphs 26 to 29 of her judgment:
26. It is clear from Sabel BV v. Puma AG (particularly paragraph 23) that the average consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details. The same case also explains that the visual, aural and conceptual similarities of the trade marks must be assessed by reference to the overall impressions created by them, bearing in mind their distinctive and dominant components. The CJEU stated, at paragraph 34 of its judgment in Case C-591/12P, Bimbo SA v OHIM, that: 
“.....it is necessary to ascertain, in each individual case, the overall impression made on the target public by the sign for which registration is sought, by means of, inter alia, an analysis of the components of a sign and of their relative weight in the perception of the target public, and then, in the light of that overall impression and all factors relevant to the circumstances of the case, to assess the likelihood of confusion.” 
27. It would be wrong, therefore, artificially to dissect the trade marks, although, it is necessary to take into account the distinctive and dominant components of the marks and to give due weight to any other features which are not negligible and therefore contribute to the overall impressions created by the marks. For ease of reference, the marks to be compared are:
Registered Proprietor’s Mark	Applicant’s mark	
	Gutter-Clear	

28. The applicant’s mark consists of the hyphenated words Gutter-Clear in title case, no part of which is highlighted in any way. Both words are in everyday use and have well-known meanings and each plays an equal role in the mark. It has no dominant elements and its distinctiveness rests in the whole. The registered proprietor’s mark is made up of a device (in green) of a leaf with raindrops on it followed by the word GUTTERCLEARUK presented in capitals letters in ordinary type face. Whilst presented as a single word, it naturally breaks down in the well-known component words and abbreviation GUTTER, CLEAR and UK, more so because each is presented in a different colour (black, blue, grey). Beneath the words is a partial reflection of them suggesting that the words and abbreviation themselves are standing in water. Whilst the leaf device will not be overlooked, it is the words GUTTERCLEARUK which form the dominant part of the mark both because of the proportion of the mark they form and because of the general principal that “words speak louder than devices”. 
29. Despite the presence of the hyphen, as the word element of the registered proprietor’s mark begins with the same two words which make up the applicant’s mark, there are clear visual and aural similarities between them. The presence of the leaf device and abbreviation UK lead to clear visual differences between them. Whilst the leaf device has no affect aurally, the abbreviation UK does add an aural difference. The words Gutter Clear (whether hyphenated or otherwise separated or not) are in everyday language and will bring to mind something intended to assist in making or keeping guttering clear of something else. The non-distinctive abbreviation UK brings to mind either a UK based company or a company which operates throughout the UK. The leaf device brings to mind either a service to clear gutters of (amongst other things) leaves or may bring to mind an ecologically sound service. Whilst there are conceptual similarities between them, there are also clear conceptual differences between the respective marks.
23.	She summarised her findings in §38:
38. Earlier in this decision I found: 
• To the extent that the services of the registered proprietor are for (equipment for) cleaning guttering, any similarity with the applicant’s goods is extremely low. For all other services, there is no similarity; 
• The average consumer of the goods and services is a member of the general public who will purchase them with at least an average degree of care; 
• Whilst there are some visual, aural and conceptual similarities between the respective marks, there are also clear visual, aural and conceptual differences between them; 
• The distinctiveness of the earlier trade mark rests in its whole. It is a mark of very low inherent distinctiveness which has not been shown to have been enhanced through its use. 
Her conclusion is in §39:
39. Taking all matters into account and making a global comparison as I am required to do, I find that there is no likelihood of either direct confusion (where one mark is mistaken for the other) or indirect confusion (where the average consumer will assume that the registered proprietor’s goods are those of the applicant or some undertaking economically linked to them). I consider the differences between the marks outweigh the similarities and the (at best) extremely low degree of similarity between the respective goods and services and degree of care taken over the purchase of them are more than sufficient to preclude such a likelihood, even considering imperfect recollection. The objection based on section 5(2)(b) of the Act fails.
24.	Mr Jones criticised the last sentence of §29 where the Hearing Officer said that whilst there are conceptual similarities between the marks, there are also clear conceptual differences.  He submitted that none of the conceptual differences had been articulated and to the extent that they were, then they were trivial or insignificant in relation to the idea of maintaining or making gutters clear.  He submitted that both marks, when considered in the context of use in the marketplace, had one and the same essential concept - maintaining or making gutters clear - and that was the message conveyed to the average consumer.  Moreover, he said, that this was so was evidenced by how the parties, as well as the third parties to whom I have referred, have used the marks. 
25.	Mr Jones said these errors vitiated the Hearing Officer’s conclusions in §39 and that the proper conclusion is that the objection based on s 5(2)(b) succeeds.
26.	In answer it was suggested that since the Respondent has succeeded in registering its highly descriptive mark, then, since the goods and services for which the CTM and the Trade Mark are registered are so different, then the Respondent’s mark is also capable of registration and should stay on the register.  I did not find this argument at all persuasive.  Not only does it ignore the “two wrongs don’t make a right” policy but it also misses the point.
27.	I have considered both of Mr Jones’ criticisms carefully.  With respect to the criticism that the Hearing Officer did not properly consider the notional use of both marks and, in particular, did not consider advertising use, I think the criticism is not well founded.  It is plain from the last sentence of [25] that the Hearing Officer was considering advertising use.  In my judgment she committed no error of principle in this respect.
28.	Mr Jones’ other criticism has more force and I accept that it is correct to an extent.  In my judgment the Hearing Officer did not properly take into account the essentially descriptive messages conveyed by the words of the two marks and erred by concluding that the conceptual differences were sufficiently significant to matter.  In my judgment there would be a very strong conceptual similarity between the two marks if considered as essentially word marks (which the Hearing Officer appears to have done – see the last sentence of her paragraph 28) and scarcely any conceptual difference, and the Hearing Officer was mistaken not to recognise this when carrying out the global assessment which she was required to do.  Had that been the end of it, in my judgment a finding of a likelihood of confusion would have been inevitable, despite the low similarity between the respective goods and services.
29.	However, that is not the end of it.  There is a striking colour aspect to the Trade Mark which appears to have played little part in the Hearing Officer’s overall assessment.  Furthermore, although the CTM is registered in monochrome such that normal and fair use could be in any colour, I do not think that it is right to compare the marks as though the CTM were in the same colours as the Trade Mark.  In my judgment the Respondent is entitled to have placed into the mix upon which the global assessment is made the distinctive colour use shown in the Trade Mark, not least because it is essentially that use which has made the Trade Mark registrable in the first place; it is the dominant distinctive element of the mark.  When this is done, and the Trade Mark and CTM are considered normally and fairly, the marks can be seen to be visually very different from each other.
30.	The next matter is to carry out the global assessment taking into account these matters where I have differed from the Hearing Officer.  Given the conclusions of the Hearing Officer of which there is no complaint, it is easy to do.  I am satisfied that the final conclusion to which she came is right, that the correct conclusion, taking all matters into account and making a global comparison, is that there is insufficient similarity between the Trade Mark and the CTM for there to be a likelihood of confusion.  
The bad faith objection
31.	In my judgment this objection has an insuperable difficulty and it is this.  The complaint is that the bad faith led to a loss of opportunity to put forward an opposition prior to registration, pursuant to s. 38, based on s.5(2)(b).   The difficulty with the submission is that the value of that loss of opportunity would appear to be nil.  If an opposition based on s.5(2)(b) had been made and had failed then the Trade Mark would have proceeded to registration in any event (other things being equal) whereas if the opposition had succeeded then the same attack which is now brought under s 47 would also succeed.  Thus the bad faith relied upon, even if it were really bad, is of no materiality.  
32.	Mr Jones countered this by submitting that an opposition based on s.3(6) and bad faith did not require there to be any material consequences of the bad faith, but he cited no authority for that proposition and it does not seem to me that it can be right.  In my judgment s.3(6) is concerned with conduct which has some material consequence; it is not concerned with wrongdoing at large, albeit in some way connected with the application, which is inconsequential.
33.	The second difficulty with the appeal based on s.3(6) is that Mr Jones has not satisfied me that the Hearing Officer made any error of principle.  The complaint made about her decision is twofold.  First it was suggested that the Hearing Officer did not give sufficient weight to the similarities between the Trade Mark and the CTM and the services and goods for which they were registered in the context of the bad faith argument.  Secondly, it was suggested that filing a trade mark application without notice and at the same time stating that you are investigating a change of name falls short of the standards of commercial behaviour observed by reasonable and experienced men and is bad faith and the Hearing Officer should have recognised this.
34.	The first complaint does not amount to an error of principle.  Furthermore, it is evident that the Hearing Officer did have in mind the similarities and differences between the two registrations since that formed the subject matter of the s5(2)(b) objection.  
35.	Regarding the second complaint, the Hearing Officer’s conclusion was that the Respondent, in acting the way it did, was acting prudently so as to preserve its position.  In my judgment this was a conclusion which was plainly open to the Hearing Officer; it is one which any reasonable Hearing Officer might have reached.  The Hearing Office made no error of principle nor was not clearly wrong.
36.	There is no general duty upon applicants for registration of trademarks to inform competitors of their plans.  The Register and The Trade Marks Journal (see ss.38 and 81 of the Act and s.81 of the Rules) exist for the purpose of informing the public about relevant trade mark matters, and persons interested in trademarks should rely on their own resources rather than competitors or other third parties to keep themselves properly informed.  
37.	In conclusion, there is no basis for disturbing the Hearing Officer’s decision and the appeal is dismissed.