Healey Sports Cars Switzerland Ltd v Jensen Cars Ltd

On an appeal from a specialist trade mark tribunal, the appellate court should interfere only for an error of law or principle, a clearly unsustainable inference, or a conclusion the tribunal was not entitled to reach. Genuine use requires more than use which is merely non-token. The use must relate to goods or services already marketed, or about to be marketed, assessed in the context of the relevant economic sector. All relevant circumstances must be considered, including the nature of the goods, the market, the scale and frequency of use, and the evidence available. Evidence of intended future goods may be insufficient where it generates only initial interest and there is no evidence of resulting commercial demand. Evidence given by lawyers without personal knowledge of the facts ordinarily carries little weight.

Healey appealed against two decisions of the Trade Marks Registry Hearing Officer. The first revoked five registered marks for non-use under section 46(1)(a) of the Trade Marks Act 1994. The second partly upheld an opposition to Healey’s international registration and rejected Healey’s application to invalidate Jensen Cars Ltd’s UK registration.

The parties agreed that both appeals turned on whether there had been genuine use of Healey’s JENSEN registration during the relevant five-year period. Healey relied principally on a website and press release concerning a proposed new Jensen Interceptor. The central questions were whether those materials demonstrated genuine use and whether the Hearing Officer had erred in law or principle.

1. Appeals dismissed. The Hearing Officer’s decisions were not vitiated by an error of law or principle.
2. Trade mark appeals are reviews rather than rehearings. The appellate court should show real reluctance to interfere with a specialist tribunal’s decision unless there is a distinct and material error of principle, a clearly impermissible inference, or an unreasonable conclusion. A disagreement with the tribunal’s factual assessment is insufficient.
3. Genuine use is not established merely because the use is more than token use. The use must be real commercial exploitation directed at maintaining or creating an outlet or market share for the relevant goods or services. It must relate to goods or services already marketed or about to be marketed. Whether goods are about to be marketed must be assessed in the context of the economic sector concerned.
4. The website and press release, published only days before the relevant period expired, concerned a car which did not yet exist. They enabled potential customers to register only initial interest, gave insufficient information to permit a serious purchasing decision, and were unsupported by evidence of provisional orders or other resulting commercial demand. Later evidence could have corroborated genuine use during the relevant period, but none had been produced.
5. The Hearing Officer was entitled to treat the evidence of the respondent’s former solicitor about a meeting as unreliable for the matters asserted, while separately considering the timing and surrounding circumstances of the claimant’s own use. He was entitled to conclude that, on the balance of probabilities, the use was made solely to preserve the rights conferred by the registration.
6. Witness statements from solicitors lacking personal knowledge of the relevant facts ordinarily have little evidential weight, unless supported by persuasive documentary evidence.

• High Court (Patents Court): appeals from the Hearing Officer’s decisions dated 7 and 10 December 2012 were dismissed.