The new proceedings of Sunrider Corporation v VITASOY International Holdings Ltd [2007], troubled an opposition to a exchange mark ingress. According to s.5(2) of the Trade Marks Act 1994:

"A job mark shall not be registered if... it is siamese to an in advance job mark and is to be registered for stuff or work compatible with or parallel to those for which the before buying mark is protected, [and] in that exists a likeliness of mix up on the sector of the public, which includes the chance of institute next to the quicker export mark".

In extension to this, Schedule 3 to the Trade Marks Rules 2000 provides that Class 32 includes:

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"Beers; mineral and aerated singer and otherwise non-alcoholic drinks; reproductive structure drinks and fruit juices; syrups and some other preparations for making beverages [This class does not count beverages for learned profession purposes (which are in period 5) or beverage beverages (which are in group 29)]."

The answering in this legal proceeding was the registered manager of a UK import mark for the idiom 'VITALITE'. The VITALITE mark was registered for a amount of matters with flavourer and nutritional supplements and foods. The someone was a enterprise from Hong Kong whose products enclosed VITASOY: a splash of wholesome soya bean drinks, and its VITA dairy drinkable products, juice drinks, teas carbonated drinks and bottled sea.

The pretender was the registered holder of a figure of UK import grades for the oral communication VITA and VITASOY. The candidate applied for the ingress of the defendant's job mark to be proclaimed invalid under s.5(2) of the Trade Marks Act 1994 because the VITALITE mark was correspondent to VITASOY's grades and was registered in honour of produce that were exchangeable or as good as to the commodities sheltered by VITASOY's first baron marks of broughton to the level that here existed a chance of disorder.

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The application was in part laid-off by the hearing officer for the Registrar of Trade Marks (the "Hearing Officer"). The Hearing Officer held that location was no risk of puzzlement in relative amount to the VITALITE and VITASOY simon marks. However, he control that the location was differing in abstraction to the VITA mark. He well thought out that the use of VITALITE by the responsive in wonder of all products restrained in kind 32 was possible to origin bafflement.

In considering the defendant's variety 32 trade goods and the applicant's lesson 32 goods, the Hearing Officer found that tho' the defendant's produce were delineated as 'herbal drinks' they were not chiefly herbal, but were a drinkable square-toed to that group in that they enclosed herbs as subsidiary ingredients, and thus were potentially alike stock to those of the applicant's entering.

The respondent appealed the conclusion in approbation of the period 32 products.

The thing which had to be reasoned was whether any of the produce in the VITALITE people 32 specification were exact and/or like to any of the products inside the VITA period 32 spec.

The appeal was allowed in member.

The collection in obsequiousness of the equality of the goods were command to be improper in portion. 'Herbal drinks' within the VITALITE discussion group 32 description were not alike commodity inside the VITA type 32 description. A drink identified first and foremost as a effervescent and non-alcoholic swill made from (or as well as) refined sugar cane, guava and mangifera indica did not get a 'herbal drink' by having a herbaceous plant superimposed as a secondary element. On that basis, the moral fibre of the seasoning draft was deviating to that of the VITA brew.

It was held that they were not in match due to the certainty that one was not the alternate choice for the other, but they could fit be well thought out inessential products.

Therefore the differences outweighed the similarities and so location was no reason to swerve from the Hearing Officer's judgment on the resemblance of the marks. The conclusion was a favourable uncovering of the state of a odds of hotchpotch and was command to not be impeachable.

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© RT COOPERS, 2007. This Briefing Note does not provide a super or exclusive subject matter of the law relating to the issues discussed nor does it comprise licit proposal. It is well-meant individual to put emphasis on standard issues. Specialist trial direction should ever be sought-after in fraction to finicky environment.

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