| BLUEBIRD-ELECTRIC
& device of a car |
Classes
12, 16 & 25 |
|
| BL
O/345/02 |
15
August 2002 |
H(MK) |
| Applicant: |
Nelson
James Kruschandl in person |
| Opponent: |
Bluebird
Electric Limited - Director Don Wales |
| Opposition: |
Sections
3(6) & 5(4)(a) |
| Summary: |
The
applicant and the opponents had formerly
had a business relationship in relation
to an electric car (invented, or
substantially invented by the applicant)
to be used in speed record attempts by
the opponents (the Director of which was
a member of the Campbell family - of
speed record fame).
The Hearing Officer decided, from the
wording of a 'licence' agreed between
the parties and the subsequent actions
of the applicant, that the application
had indeed been made in bad faith. This
finding under Section 3(6) effectively
decided the matter. However, the Hearing
Officer went on to consider the
objection under Section 5(4)(a). In this
he found that the opponents had not
clearly established in evidence their
claim to reputation and this ground
failed.
|
| Result: |
Section
3(6) |
- |
Opposition
successful. |
| Section
5(4)(a) |
- |
Opposition
failed. |
| Points
of interest |
| 1. |
Bad
faith : actions falling "well short
of the standard expected in
commerce". |
| 2. |
Application
for registration : an object of property
belonging to the opponents. |
| Headings
for Digest entry |
| (i) |
Section
3(6) |
| (ii) |
Section
5(4)(a) |
| (iii) |
Section
27 |
| (iv) |
DEMON
ALE Trade Mark [2000] RPC
345 |
| (v) |
Gromax
Plasticulture Ltd v Don & Low
Nonwovens Ltd [1999] RPC
367 |
| (vi) |
TEAM
LOTUS Trade Mark [1999] ETMR
669 |
| (vii) |
BLACK
MIX Trade Mark (BL
O/048/00) |
| (viii) |
WILD
CHILD Trade Mark [1998] RPC
455 |
| (ix) |
South
Cone Incorporated v Jack Bessant,
Dominic Greensmith, Kenwyn House and
Gary Stringer (REEF Trade Mark) [2002] RPC
19 |
| Appeal
to the Appointed Person |
|
The
applicant appealed the decision of the
Hearing Officer to the Appointed Person
because the previous application was not
the property of the Opponent, a point
which had escaped the Hearing Officer,
he having noted that the law of property
applied. The Opponent company owed
approximately £62,000 to the applicant.
In addition, the 'licence' referred to
by the Hearing Officer and terms
contained therein was null and void, by
the actions of the parties. |
| Appeal
Abandoned in return for Undertaking of
Opponent to provide a Licence |
|
So
as to prevent the Appeal from
proceeding, the director of the Opponent
company agreed to give to the applicant
a Licence for the goods the subject of
the application, by way of admission
that the earlier property had not been
paid for by Bluebird Electric Limited.. |
| Trade
Mark Registry decision publications |
|
The
applicant communicated with the Registry
concerning publication of just the first
part of the above opposition
proceedings, where many readers would
assume this was the final conclusion and
could find the imbalance misleading.
The Registry confirmed it was policy to
publish decisions, but have so far
failed to publish the fact that the Hearing
Officer's decision was appealed and that
subsequently the opponents reached an
amicable settlement before the Appointed
Person.
The Registry did though publish the
transcripts and decision relating to a
costs hearing in 2011 - which we would
invited you to agree is rather in imbalance
and demonstrates bias on the part of the
Trade Marks Registry. Bias is of course
unlawful as per Article
14 of the Human Rights Act 1998 and
Section 6. The moment that bias enters
into the frame, then unfairness is
invoked as in Article 6.
That the Applicant then failed to
provide the License he Undertook to
provide is a matter that is presently
the subject of an application to the European
Court of Human Rights.
|
