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The recent casing of Sunrider Corporation v VITASOY International Holdings Ltd [2007], bothered an hostility to a trade mark enrollment. According to s.5(2) of the Trade Marks Act 1994:

"A import mark shall not be registered if... it is like to an faster buying mark and is to be registered for produce or services identical next to or related to those for which the previously business mark is protected, [and] near exists a possibility of disorientation on the sector of the public, which includes the likeliness of institute with the before business mark".

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

"Beers; mineral and aerated waters and remaining non-alcoholic drinks; reproductive structure drinks and fruit juices; syrups and opposite preparations for making beverages [This background does not list beverages for medical purposes (which are in colloquium 5) or potable beverages (which are in people 29)]."

The responsive in this proceedings was the registered proprietor of a UK retail mark for the declaration 'VITALITE'. The VITALITE mark was registered for a digit of matters plus flavorer and nutritional supplements and foods. The applicant was a people from Hong Kong whose products incorporated VITASOY: a flash of wholesome soy drinks, and its VITA dairy potable products, juice drinks, teas carbonated drinks and bottled hose.

The someone was the registered landlord of a numeral of UK business grades for the spoken language VITA and VITASOY. The participant applied for the incoming of the defendant's exchange mark to be announced invalidated below s.5(2) of the Trade Marks Act 1994 because the VITALITE mark was equivalent to VITASOY's grades and was registered in amazement of merchandise that were indistinguishable or identical to the stock snow-covered by VITASOY's results to the stage that nearby existed a prospect of botch.

The request was partially laid-off by the quick-eared serviceman for the Registrar of Trade Marks (the "Hearing Officer"). The Hearing Officer held that location was no speculate of bafflement in share to the VITALITE and VITASOY businessman. However, he command that the post was conflicting in fraction to the VITA mark. He reasoned that the use of VITALITE by the answering in veneration of all goods restrained in socio-economic class 32 was potential to explanation alarm.

In considering the defendant's variety 32 stuff and the applicant's standing 32 goods, the Hearing Officer recovered that though the defendant's stock were delineated as 'herbal drinks' they were not largely herbal, but were a beverage prudish to that lesson in that they included herbs as inferior ingredients, and in consequence were potentially identical commodity to those of the applicant's entrance.

The responsive appealed the conclusion in service of the group 32 artifact.

The bring out which had to be well thought out was whether any of the stuff inwardly the VITALITE standing 32 specification were exact and/or akin to any of the goods inside the VITA people 32 specification.

The request was allowed in subdivision.

The accumulation in deference of the comparison of the stuff were command to be in the wrong in sector. 'Herbal drinks' inside the VITALITE standing 32 description were not correspondent artefact inside the VITA sort 32 specification. A drink known first and foremost as a effervescent and non-alcoholic cocktail made from (or together with) sweetening cane, psidium littorale and mangifera indica did not go a 'herbal drink' by having a vascular plant value-added as a supplementary constituent. On that basis, the spirit of the flavoring drink was divers to that of the VITA cocktail.

It was command that they were not in fight due to the certainty that one was not the secondary choice for the other, but they could economically be reasoned complementary products.

Therefore the differences outweighed the similarities and so within was no defence to degenerate from the Hearing Officer's achievement on the similarity of the businessman. The outcome was a affirmative discovery of the days of a possibility of mix up and was control to not be impeachable.

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© RT COOPERS, 2007. This Briefing Note does not confer a far-reaching or through notice of the law relating to the issues discussed nor does it make up sub judice direction. It is certain simply to particular generalized issues. Specialist legitimate warning should ever be sought in part to demanding destiny.