General Biscuits Belgie N.V v Christian Joanny Dongey

General Biscuits Belgie N.V. opposed the trade mark application of Christian Joanny Dongey for the mark "frog prince" in relation to cakes and pastries. The opposition was heard by a delegate of the Registrar of Trade Marks. Both parties filed written submissions but did not attend the hearing. General Biscuits Belgie nominated several grounds for opposition, including that the mark was not intended for use, was not capable of distinguishing the applicant's goods, would be contrary to law, would be likely to deceive or cause confusion, was deceptively similar to existing trade marks owned by General Biscuits Belgie, and was not owned by the applicant.

The delegate focused primarily on the ground of deceptive similarity under section 44 of the *Trade Marks Act 1995*, as this was the main argument advanced by the opponent. General Biscuits Belgie argued that the "frog prince" mark was deceptively similar to four of its earlier trade marks: "pineapple prince," "choco prince," "prince," and a device mark known as the "prince device." The opponent contended that despite the "frog prince" mark not being substantially identical to these marks, it created a similar overall impression. The applicant, Mr Dongey, argued that the word "prince" was a minor component of his mark, overshadowed by the distinctive imagery of a frog and the French phrase "le frog," and that the overall impression was significantly different from the opponent's marks.

The delegate found that the "frog prince" trade mark, with its depiction of a frog and the inclusion of "le frog," created a distinct impression and evoked the fairy tale of "The Frog Prince." This impression was considered sufficiently different from the opponent's marks, which featured the word "prince" or a depiction of a man in royal attire. The delegate reasoned that while the word "prince" appeared in both the applicant's and opponent's marks, its significance was diminished in the "frog prince" mark by the dominant imagery of the frog and the French connotation. The delegate concluded that an ordinary person, even when purchasing goods like cakes and pastries with little forethought, would not be likely to be deceived into believing that the "frog prince" mark indicated a connection with the proprietor of the opponent's marks. Consequently, the section 44 ground of opposition was dismissed.

The delegate also dismissed the remaining grounds of opposition. The ground under section 27 regarding intention to use was dismissed as the opponent failed to discharge the onus of proving the absence of such intention, with the application itself being prima facie evidence of intent. The grounds under sections 42 and 43 were dismissed due to a lack of evidence or submission to support them. The ground under section 58 was also dismissed for lack of support. As all grounds of opposition failed, the opposition was dismissed in its entirety, and the trade mark application was permitted to proceed to registration, with costs awarded to the applicant.