1-800-Flowers.Com, Inc

This decision concerned trade mark applications numbered 1396655 and 1396656, filed by 1-800-Flowers.Com, Inc. The dispute arose from the acceptance of these applications, which the Hearing Officer, Heath Wilson, was asked to review. The core of the matter was whether the initial examination process had resulted in an error, and if so, whether it was reasonable to revoke the acceptance of the trade marks.

The legal issue before the Hearing Officer was to determine if there had been an error in the examination of the trade marks and, consequently, whether it was reasonable to revoke their acceptance under section 38 of the relevant Act. The applicant's arguments were limited to these two points.

The Hearing Officer found that an error had indeed occurred during the examination of the trade marks. While acknowledging that consistency in the trade marks register can be a factor, the Hearing Officer stated that their role was not to perpetuate errors but to address the question under section 38. The Hearing Officer was satisfied that revoking the acceptance was reasonable in the circumstances. The question of whether the trade marks could be accepted under grounds such as prior use or honest concurrent use was deferred to the re-examination process.

The Hearing Officer directed that the acceptances of applications 1396655 and 1396656 be revoked one month from the date of the decision, and that the applications be re-examined. Provisions were also made for the re-examination to be stayed if a notice of appeal was served within that month, pending the outcome of any appeal.