Reln applied to remove Combined’s registration for the plain word mark ‘Rainmate’.  Combined opposed and was able to adduce evidence, largely in the form of offers for sale, of its trade mark being used as:

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in relation to ‘plastic water tanks’.

The opponent was also able to show some evidence of sales in the form of invoices from sales its ‘water tanks’.  The Hearing Officer concluded that use of the above mark constituted use of the plain word mark ‘Rainmate’.

However, as the opponent’s registration covered only ‘water supply installation’ in Class 11 and the type of plastic water tanks the opponent was offering for sale are correctly classified in Class 20, the Hearing Officer had further decisions to make.

Ultimately, the Hearing Officer took the view that the opponent, when filing its trade mark application, made an error in describing and classifying its goods.  This error was only brought to the attention of the opponent due to the non-use action and, as such, the opponent was entitled to limit its goods and transfer them to the correct class (Class 20).

The applicant was awarded costs, as the non-use was partially successful.

To view the Office decision, click here.