Trade mark decision

BL Number

O/388/02

Decision date

26 September 2002

Hearing officer

Mr D Landau

Mark

ENSURE PLUS

Classes

05

Registered Proprietor

Abbott Laboratories

Applicants for Revocation

DCS Europe Plc

Application for Revocation

Section 46(1)(b)

Result

Section 46(1)(b) - Application for partial revocation successful

Points Of Interest

• 1. Use of mark in a form other than as registered.
• 2. ‘Use’ includes ‘oral’ use.
• 3. ‘Natural meaning’ of words in specification.
• 4. Disclaimers in non-use cases not on a par with disclaimers in Section 5 cases.

Summary

The applicants sought partial revocation on the grounds of non-use. This was one of two related actions involving the same parties and heard together (see BL O/389/02). From the evidence and the submissions made relative to it, the Hearing Officer found that the proprietor had not shown use of the trade mark either in the form as registered or in a form which complied with Section 46(2), and he went on to consider whether there were proper reasons for non-use. However, in this he found that the proprietor had not put forward any cogent argument as to why the mark had not been used. He seemed instead to have used a mark other than the one which had been registered. Consequently the Hearing Officer found that there were no proper reasons for non- use.

He went on, however, to consider the proprietor’s claim that the use shown, (on invalid’s food) could be considered use in relation to the total specification in the registration. Giving the words in the specification their ‘natural meaning’, however the Hearing Officer found that there had indeed been no use on any goods in the specification other than ‘invalid foods’ and he ordered that the registration be cancelled in respect of the other goods.

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