Trade mark decision

BL Number

O/294/06

Decision date

18 October 2006

Hearing officer

Mrs A Corbett

Mark

BSA BY R2

Classes

25

Applicant for Revocation

BSA Company Limited

Registered Proprietor

Brands Holdings Limited

Revocation

Section 46(1)(a) & (b) & Rule 31

Result

Rule 31: Insufficient evidence to satisfy Rule 31. Opposition to application deemed withdrawn.

Points Of Interest

• The registered proprietor appealed to the Appointed Person.
• In his decision dated 29 May 2007 (BL O/144/07) the Appointed Person accepted that an application for revocation could be amended to clarify matters but this should be by way of a formal application rather than by way of a telephone call; that the date of revocation must be five years plus one day after the date of registration and that the Registrar had set too high a hurdle in his consideration of the evidence filed by the registered proprietor with his counterstatement. Decision set aside and returned to the Registrar for further consideration.

Summary

In response to the filing of an application for revocation on the grounds of non-use, the registered proprietor filed a counterstatement together with a witness statement claiming use of the mark BSA. The Registry indicated its intention to deem the registration as undefended as it did not consider the evidence filed sufficient to satisfy the requirements of Rule 31(3) of the Trade Mark Rules. The registered proprietor asked for a hearing and at the some time requested amendment of its mark from BSA by R2 to BSA.

Following postponement of the hearing to allow the parties to negotiate a possible settlement the Registry dealt with the application to amend the mark in suit and refused the request. A hearing was subsequently re-appointed during which the registered proprietor attempted to amend its counterstatement in Counsel’s skeleton arguments so that additional evidence of use could be considered. This request fell outside the normal arrangements for filing a request to amend a counterstatement and was refused. References was also made to the requested amendment of the mark in suit but the Hearing Officer pointed out that the matter had been concluded and had not been appealed within the time allowed.

It was admitted by the registered proprietor that there had been no use of the mark in suit but use was claimed of the mark BSA. The Hearing Officer carefully examined the evidence before him, all of which was undated and/or consisted of poor photocopies. There was no surrounding evidence to confirm or show use and no details were given as to the source of the evidence filed. The Hearing Officer concluded that the evidence before her was insufficient to satisfy the requirements of Rule 31(3) of the Trade Mark Rules and deemed opposition to the application to have been withdrawn.

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