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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 >> DREAM DAZZLERS (Trade Mark: Opposition) [2005] UKIntelP o02005 (21 January 2005) URL: http://www.bailii.org/uk/cases/UKIntelP/2005/o02005.html Cite as: [2005] UKIntelP o2005, [2005] UKIntelP o02005 |
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For the whole decision click here: o02005
Result
Section 5(2)(b): - Opposition failed.
Section 5(4)(a): - Opposition failed.
Points Of Interest
Summary
The applicants' application in Class 28 was in respect of "role play toys and playthings plus other goods such as dressing up clothes and accessories but excluded balloons and Christmas decorations and ornaments". The opponents' registered mark in Class 28 was the mark DAZZLERS in respect of "Balloons, Christmas decorations and ornaments, Christmas trees, crackers etc".
The opponents claimed use of its mark DAZZLERS from 1984 onwards in respect of a range of Christmas decorations and ornaments, Santa dolls, Christmas trees, Christmas lights, crackers, wrapping paper etc. Sales of between £4.5m and £8.4m were claimed for the years 1996-2001 and turnover figures for this period were provided. The supporting documentation and exhibits showed use of DAZZLERS in MAKRO catalogues and more extensive use of the mark DAZZLERS CHRISTMAS WORLD. None of the exhibits were dated prior to the relevant date and there was no supporting evidence from trade sources or from the public. In view of these gaps in its evidence the Hearing Officer decided that he was unable to confirm that the opponents had a reputation in its mark DAZZLER. The onus was on the opponents to buttress its claim with relevant evidence.
Under Section 5(2)(b) the Hearing Officer carefully compared the respective goods of the two parties. While it was possible that toys and playthings could be used as Christmas tree decorations or the like he concluded that overall the respective goods were in distinct areas of trade, nor were they competitive or complementary. They were thus not similar. While the respective marks DREAM DAZZLERS and DAZZLER were somewhat similar the fact that the respective goods were not similar meant that the opposition under Section 5(2)(b) failed.
Under Section 5(4)(a) - Passing Off - the Hearing Officer referred to the evidence filed by the opponents and his conclusion that the opponents had not proved a reputation in their marks DAZZLERS and DAZZLERS CHRISTMAS WORLD. Such a finding was fatal to the opponents' case as it could not suffer damage to a reputation and goodwill which had not been proved. Opposition failed on the Section 5(4)(a) ground.
