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Answer Upon - Landmark Ruling in Trade Mark Case - Test for Invalidity
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First Instance Decision
The claimant company, Special Effects Limited, owned the mark SPECIAL EFFECTS which was obtained by way of an assignment. The trade mark was registered pursuant to s 40(1) of the Trade Marks Act 1994 (‘the Act’) in respect of goods in class 3 (conditioners and hair lotions, and services) and class 44 (beauty and cosmetic therapies).
Before the trade mark was registered, the first defendant opposed the trade mark application on the grounds set out in ss 3(1)(a), 3(3)(b), 5(2)(b) and 5(4)(a) of the Act. The opposition was dismissed by the hearing officer.
The claimant then commenced infringement proceedings against the first defendant and its UK subsidiary (the second defendant), alleging that they had infringed the trade mark SPECIAL EFFECTS by using its brand SPECIAL FX and that the defendants were precluded from challenging the validity of the trade mark SPECIAL EFFEC
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First Instance Decision
The claimant company, Special Effects Limited, owned the mark SPECIAL EFFECTS which was obtained by way of an assignment. The trade mark was registered pursuant to s 40(1) of the Trade Marks Act 1994 (‘the Act’) in respect of goods in class 3 (conditioners and hair lotions, and services) and class 44 (beauty and cosmetic therapies).
Before the trade mark was registered, the first defendant opposed the trade mark application on the grounds set out in ss 3(1)(a), 3(3)(b), 5(2)(b) and 5(4)(a) of the Act. The opposition was dismissed by the hearing officer.
The claimant then commenced infringement proceedings against the first defendant and its UK subsidiary (the second defendant), alleging that they had infringed the trade mark SPECIAL EFFECTS by using its brand SPECIAL FX and that the defendants were precluded from challenging the validity of the trade mark SPECIAL EFFE
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The claimant company, Special Effects Limited, owned the mark SPECIAL EFFECTS which was obtained by way of an assignment. The trade mark was registered pursuant to s 40(1) of the Trade Marks Act 1994 (‘the Act’) in respect of goods in class 3 (conditioners and hair lotions, and services) and class 44 (beauty and cosmetic therapies).
Before the trade mark was registered, the first defendant opposed the trade mark application on the grounds set out in ss 3(1)(a), 3(3)(b), 5(2)(b) and 5(4)(a) of the Act. The opposition was dismissed by the hearing officer.
The claimant then commenced infringement proceedings against the first defendant and its UK subsidiary (the second defendant), alleging that they had infringed the trade mark SPECIAL EFFECTS by using its brand SPECIAL FX and that the defendants were precluded from challenging the validity of the trade mark SPECIAL EFFE
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Before the trade mark was registered, the first defendant opposed the trade mark application on the grounds set out in ss 3(1)(a), 3(3)(b), 5(2)(b) and 5(4)(a) of the Act. The opposition was dismissed by the hearing officer.
The claimant then commenced infringement proceedings against the first defendant and its UK subsidiary (the second defendant), alleging that they had infringed the trade mark SPECIAL EFFECTS by using its brand SPECIAL FX and that the defendants were precluded from challenging the validity of the trade mark SPECIAL EFFE
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- Estoppel;
- Issue estoppel; and
- Abuse of process.
The defendants opposed these infringement proceedings on the basis that the registration of the trade mark SPECIAL EFFECTS was invalid.
The Court in the first instance had to establish the following:-
- whether either or both of the defendants was/were precluded by cause of action estoppel, issue estoppel or abuse of process from challenging the validity of the trade mark SPECIAL EFFECTS; and
- whether either or both of the defendants was/were precluded by cause of action estoppel, issue estoppel or abuse of process from alleging use of the marks complained of before the application for registration as part of the basis for a defence under s 11(3) of the Act or as part of the basis for a counterclaim for passing off.
According to Section 38 of the Act:
‘…(2) Any person may, within the prescribed time from the date of the publication of the application, give notice to the registrar of opposition to the registration.’
According to Section 47 of the Act:
‘…(1) The registration of a trade mark may be
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