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23 February 2004

NELLIE THE ELEPHANT sent packing by Trademarks Registry

The UK Trademarks Registry has refused to allow an application to invalidate the trademark NELLIE THE ELEPHANT, filed by the owner of the copyright in the song "Nellie the Elephant", on the grounds that copyright did not subsist in the song title alone. However, the registry upheld a separate claim for revocation of the mark on the grounds of non-use.

28 January 2004

easyGroup and Orange marks not identical

The UK Trademarks Registry has rejected an opposition to the registration of a series of marks featuring words prefixed by the term 'easy' on an orange background. It held that although the opponent - the mobile phone operator Orange - owns a registration for a particular shade of orange, the marks were not identical because the words prefixed with the term 'easy' were significant additions.

21 January 2004

United Kingdom accedes to Locarno Agreement

The United Kingdom has acceded to the Locarno Agreement Establishing an International Classification for Industrial Designs. The agreement forms a special union of countries that have adopted a single classification for industrial designs. The United Kingdom is the forty-third country to accede to the agreement, joining countries ranging from Austria to Uruguay.

16 January 2004

DUPONT registration stretches to clothing

In EI Du Pont De Nemours & Company v ST Dupont, the Court of Appeal has dismissed the defendant's opposition to the registration of DUPONT for clothing. It rejected the defendant's claim that DUPONT was not distinctive as it is a common surname in France, stating that the key question was whether DUPONT was capable of distinguishing the relevant goods in the United Kingdom.

13 January 2004

No intention to use mark when filing equals bad faith

In Ferrero SpA v Soldan Holding & Bonbonspezialitaten GmbH, David Kitchin - an appointed person of the UK Patent and Trademark Office - has upheld the hearing officer's decision to invalidate five of Ferrero's KINDER trademark registrations on the grounds that Ferrero did not have any intention of using them at the time of application.

02 December 2003

Virgin successfully opposes diluting VIRGIN OIL mark

In Virgin Enterprises v Virgin Oil Limited, the UK Patent and Trademark Office has upheld Virgin Enterprises' opposition to the registration of the mark VIRGIN OIL on the grounds that it was likely to be confused with the famous VIRGIN mark and would dilute it. The hearing officer considered that Virgin Oil did not have due cause to use the mark.

19 November 2003

'Clothing' is fair description of ANIMAL goods

In H Young (Operations) Limited v Medici Limited, the UK High Court has refused the defendant's claim for partial revocation of the mark ANIMAL. It also ruled that the plaintiff's use of the term 'clothing' as a specification of goods covered by the mark is a fair description, not requiring qualification in any way, despite the fact that use of the mark was confined to surfwear of a casual type.

14 November 2003

Patent Office issues practice notice on registration of designs

The UK Patent Office has issued a practice notice that outlines how examiners are to apply the restrictions on the registration of functional designs in light of the European Court of Justice's decision in the Philips Case. The test for a functional design appears to be whether the technical function dictates the appearance of the product to the extent that there is no design freedom.

10 November 2003

Patent Office opens consultation period on changes to trademark rules

The UK Patent Office has issued a consultation paper and opened a formal consultation period on its proposed changes to the rules relating to, among other things, (i) oppositions to trademark registrations, and (ii) the opposition fee structure.

21 October 2003

Breakthrough in HAVE A BREAK Case awaited

Before ruling on the HAVE A BREAK Case, the UK Court of Appeal has referred to the ECJ the question of whether the use of a mark in conjunction with, or as part of, another mark may be considered as evidence of acquired distinctiveness. The ECJ's interpretation of this issue is keenly awaited as it will affect the registrability of most unconventional marks.

02 October 2003

Costs should be considered before referring cases to the High Court

In Emanuel v Continental Shelf 128 Ltd, an appointed person of the UK Patent and Trademark Office has ruled that the decision whether to refer an appeal to the High Court following a request from one of the party's involved should reflect the financial standing of the party not requesting the reference.

24 September 2003

Lack of reliance on colour precludes registration for oil mark

In Fuchs Lubricants (UK) plc v Alexander Duckham & Co Limited, the Patent and Trademark Office has rejected the registration of green as a colour mark for motor oil. The hearing officer held that the applicant, Duckhams, had failed to establish that the colour mark had acquired distinctiveness through use.

12 September 2003

Associated Newspapers keeps exclusive right to MAIL newspapers

The High Court has issued an injunction restraining Express Newspapers from using the titles Evening Mail and London Evening Mail for its proposed free newspaper. The court held that use of these titles would (i) infringe the plaintiff Associated Newspaper's rights in its THE MAIL, DAILY MAIL or THE MAIL ON SUNDAY marks, and (ii) amount to passing off.

31 July 2003

Triple victory for SMIRNOFF in invalidity cases

The High Court has issued three decisions in favour of US drinks company Diageo, which (i) reject a bad-faith challenge against its SMIRNOFF registrations for vodka, and (ii) establish that a third party may not register a well-known mark in a different script, even for different goods.

15 July 2003

No change to trademark examination system until 2006

Some 18 months after the closure of a consultation period on a paper entitled Future of Official Examination on Relative Grounds, the UK Patent Office has announced its plans for the trademark examination system. As a result of the response to the review, it will be maintaining the current system for examining trademark applications until at least 2006.