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United Kingdom Intellectual Property Office Decisions |
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You are here: BAILII >> Databases >> United Kingdom Intellectual Property Office Decisions >> FORM ONLY MARK (Trade Mark: Opposition) [2003] UKIntelP o28103 (17 September 2003) URL: http://www.bailii.org/uk/cases/UKIntelP/2003/o28103.html Cite as: [2003] UKIntelP o28103 |
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For the whole decision click here: o28103
Result
Section 3(1)(b) - Section 3(1)(b):
Points Of Interest
Summary
The Hearing Officer had first to consider a request for a stay of proceedings to await the outcome of a case before the ECJ which had raised a relevant point. The Hearing Officer, however, having heard the case found that it could be decided on its own facts and without the need for a reference to the ECJ.
The question of estoppel also arose, in that it was contended the opponents had themselves claimed exclusive use, in another case before OHIM , of the colour combinations which they here sought to characterise as commonplace in the trade. The Hearing Officer noted that this opposition concerned absolute grounds, whereas opposition on such grounds was not possible before OHIM . The claim of estoppel on grounds of inconsistency was therefore not sustainable. Moreover, it was the subsequent action, before OHIM , which might be considered inconsistent and the claim should therefore be made in that forum.
The Hearing Officer then considered whether the applicants could claim the benefit of the proviso to Section 3; if they could this would dispose of the objections on the grounds cited in the pleadings. The survey evidence however did not establish that the colour combination claimed in the applications had acquired a secondary meaning. The opposition under Section 3(1)(b) succeeded and the Hearing Officer made no finding under the other grounds pleaded.
