IPO Aside from the objections on absolute grounds, the opponents also claimed to have used the symbol of a camellia on a wide variety of items, including some in the applicants’ specification.
The Hearing Officer dealt firstly with the objection under 3(1)(d), which he dismissed since there was no evidence that the word was customary in the common parlance or practices of the trade; in any case the additional device of ‘Katakana’ symbols meant that the mark did not ‘consist exclusively of’ – as required by that Section.
Under Sections 3(1)(b) and (c) however, CAMELLIA had to be regarded as a word descriptive of goods that were representations of that shrub or flower; notionally, all of the goods specified. The opposition brought on those grounds succeeded therefore.
Under Section 5(4)(a) the opposition failed; the opponents had successfully shown that other traders produced goods in the shape of camellias; such use therefore could not have been exclusive to them.
Citations:
[2007] UKIntelP o21707
Links:
Jurisdiction:
England and Wales
Intellectual Property
Updated: 20 October 2022; Ref: scu.456743