Trade mark decision

BL Number

O/022/07

Decision date

16 January 2007

Hearing officer

Mr D Landau

Mark

HERITAGE

Classes

31, 33

Applicant

Nisa-Today’s (Holdings) Ltd

Opponent

Independent Food Services Limited

Opposition

Section 5(4)(a)

Result

Section 5(4)(a): Opposition successful.

Points Of Interest

• 1. To note the Hearing Officer’s consideration of “residual goodwill” paragraphs 15 and 16.
• 2. The applicant appealed to the Appointed Person. In her decision dated 22 August 2007 (BL O/247/07) the Appointed Person upheld the Hearing Officer's decision and dismissed the appeal.

Summary

The opponent in these proceedings claimed to have used the mark HERITAGE from 1994 onwards in relation to “cider”. It provided evidence in relation to sales to cash and carry outlets of some £9m with a retail value of some £12m. Continuous use through to 2003 (the relevant date) was claimed but the evidence was not well focused and the applicant disputed some of the claims made at the hearing. However, the evidence was not challenged formally and no request was made for cross-examination.

Under Section 5(4)(a) the Hearing Officer examined the opponent’s evidence carefully. While he accepted that it was not conclusive, he decided that in the light of no challenge from the applicant, that the evidence was just sufficient to prove the claims made in the opposition. Opposition thus successful in respect of cider. The Hearing Officer went on to consider whether, if he was wrong in accepting the opponent’s evidence, the opponent could benefit from a residual goodwill in relation to proved user in the period 1994-1997. After examination of the evidence and the nature of the user, the Hearing Officer concluded that the opponent could not benefit from a residual goodwill.

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URL: http://www.bailii.org/uk/cases/UKIntelP/2007/o02207.html