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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Coincidence is not evidence of bad faith

In Focal Point Fires Ltd's application; opposition of Valor Ltd, decision O-347-07 of 23 November 2007 (SERENITY), the UK Intellectual Property Office had to rule on an opposition on the ground of bad faith. The applicant's mark was SERENITY, for heating apparatus in Class 11; the opponent objected that the applicant - a direct competitor - had deliberately appropriated a mark which it had previously used for its own products.

Left: Focal Point's Serenity heater

Following a review of the evidence the hearing officer, Mike Foley, said:

"59. It is indeed a coincidence that two rival companies should independently adopt the same name for the same goods within a matter of months of each other, but coincidence, of itself, is not a basis for finding bad faith by the latecomer. SERENITY is not an invention of either party; it is an ordinary English word that seems apt to describe the goods in an allusory sense. The applicant’s explanation of how they came to choose SERENITY as a trade mark is not so implausible so as to enable me to conclude that it cannot be an honest statement.

60. By the time that the applicants came to adopt the name the opponents had only been using it for a matter of months. It may well be that the use was so confined that it did go unnoticed by the applicants. The evidence lacks the detail required to determine whether there was a real likelihood the applicants would have come into contact with the opponent’s use. Apart from setting out a collection of circumstances that suggests that, on the balance of probabilities, [the applicants] would be likely to have known of their use, the opponents have not challenged the veracity of his statement. ...

61. In my view the evidence does not support the allegation of bad faith and the objection under Section 3(6) is dismissed".

Posted by: Blog Administrator @ 08.44
Tags: Bad faith,
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