Geoffrey Richard Bull and Susan Bull v Freixenet S.A

[1994] ATMO 102

TRADE MARKS ACT 1955

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS

Re:Opposition by FREIXENET, S.A. to registration of trade mark application number 571664 in the name of GEOFFREY RICHARD BULL and SUSAN BULL

On 28 January 1994, I issued my interim decision in the above matter.  In that decision, I found that the opponent had failed on all but one of the grounds relied upon, that being that the applicant did not use the mark on all of the goods claimed.  I allowed the applicant 28 days from the date of the decision to delete those items from the statement of goods.  I said that, if the applicant complied with this condition, I would then issue my decision allowing the application to proceed for the restricted statement of goods.  If the applicant chose not to restrict its goods, I would issue my final decision refusing the application.  The goods in question were "sparkling wines", on which the applicant had stated in evidence, and at the hearing, the mark was not used.

The applicant sought to delete those items from its statement of goods in its letter to the Registrar of 25 February 1994.  The statement of goods will now read:

"Wines, excluding sparkling wines, and other goods in this class"

The aforesaid statement now satisfies my requirements as outlined in my earlier decision.  The statement of goods of the application will now be amended accordingly and, subject to any appeal in the matter, the application should proceed to registration.

Costs

As I foreshadowed in my earlier decision, given that the applicant has restricted its goods to my satisfaction, I consider that both sides have been partially successful.  In consequence, I am of the opinion that the proper course is for both sides to bear their own costs and this I so order.

Ian Forno
Hearing Officer

28 February 1994