Multi-Access Ltd v Guanghzhou Wong Lo Kat Great Health Business Development Co Ltd

An appeal from a UKIPO decision on trade mark non-use is a review, not a rehearing. The appellate court should intervene only for an error of principle or where the decision is clearly outside the range of reasonable conclusions.

Genuine use must be assessed holistically, having regard to all relevant facts and circumstances. The proprietor bears the burden of proving use with sufficiently solid and specific evidence.

Where a specification is ambiguous because the goods may fall within several Nice Classification classes, the class number may be used to determine its scope. A reference to “all included in Class X” further confines the specification to goods classified in that class.

Multi-Access Limited appealed against a UKIPO decision revoking two trade mark registrations for non-use under section 46 of the Trade Marks Act 1994. The registrations covered “beverages for medicinal purposes; all included in Class 5” and “beverages; all included in Class 32”.

The Hearing Officer found that the evidence did not establish genuine use in the United Kingdom during the relevant statutory periods. He also concluded that the evidence principally concerned tea products falling outside the registered specifications.

The appeal raised issues concerning the standard of appellate review, the assessment of genuine use, use of variant signs, and the relevance of the Nice Classification to the specifications.

1. Appeal dismissed. The Hearing Officer applied the correct five-year periods under section 46(1)(a) and (b) of the Trade Marks Act 1994. His references to sales ending in April 2013 did not show that he had substituted a shorter period or applied a test requiring continuous use.
2. The appeal was a review rather than a rehearing. Intervention was justified only for an error of principle, a failure to consider relevant matters, consideration of irrelevant matters, or a conclusion outside the bounds of reasonable disagreement. No such error was established.
3. The Hearing Officer correctly made an holistic assessment of the evidence. The proprietor bore the burden under section 100. The evidence was scant, uncertain and insufficiently corroborated. It did not establish the extent of United Kingdom sales, advertising, or use with the proprietor’s consent.
4. The Hearing Officer’s failure to address the difference between the registered sign and a sign reversing the first and third Chinese characters was an error. That variant altered the distinctive character of the registered mark and should have been discounted. The error did not affect the outcome.
5. The Nice Classification is relevant when the specification is ambiguous or covers goods registrable in several classes. The words “beverages; all included in Class 32” were to be read with Class 32. Herbal tea, including canned liquid herbal tea, was classified in Class 30 in 1992 and did not support the Class 32 registration. There was no evidence that the canned tea was medicinal or adapted for medical use, so it did not support the Class 5 registration.
6. The Hearing Officer’s failure to determine whether canned liquid herbal tea fell within the specifications required the court to make its own findings, but those findings independently confirmed that the registrations had never been used for the registered goods. The revocations therefore stood.

• High Court (Chancery Division): Appeal from the UKIPO decision BL O-220-19 dismissed. The revocations of registrations 1495166 and 1495167 were upheld.