| 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.
Subsequently, the Malcolm Campbell Hertitage Trust
and Donald Wales Undertook to provide Nelson
Kruschandl a Licence to their application, if he
withdrew his Appeal to the Appointed Person. This he
did, accepting the word of Don Wales in the matter. To
date no License has been forthcoming.
|
| 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. |
| 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 the Hearing Officer's
decision was Appealed and subsequently the opponents
reached an amicable settlement before the Appointed
Person. |
|
|
& names Bluebird
and Blue Max are registered trademarks. The BE2 and BE3 vehicle
configurations are registered designs ®. All other trademarks are
hereby acknowledged. Max Energy Ltd is an environmental
educational charity.