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Home : Trade Marks : Legal : Case Summaries : 2002  

 

 

TRADEMARK CASE SUMMARY: O/345/02

 

 

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.

 

 

 

 

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