The Wella Corporation v Alberto-Culver Company

The Wella Corporation v Alberto-Culver Company

The hearing officer was entitled to find, on the evidence, that 'SHAPER' lacked all distinctive character at the relevant date and that 'FUNKY' added nothing distinctive. As neither mark would be seen as indicating origin, there was no likelihood of confusion and the grounds for invalidation under section 5(2)(b) were properly dismissed.

Parties
Applicant/claimant: The Wella Corporation; Respondent/defendant: Alberto-Culver Company
Jurisdiction
England and Wales
Judgment Date
01 December 2011
Procedural Posture
Trade Mark Appeal / Appeal From Trade Mark Registry Decision
Outcome
Appeal dismissed
Legal Topics
Trade Marks, Likelihood of Confusion, Distinctiveness, Invalidation Proceedings
Intellectual Property Trade Marks Likelihood of Confusion Distinctiveness Invalidation Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The Wella Corporation

Applicant/claimant

Alberto-Culver Company

Respondent/defendant

Procedural Posture

Trade Mark Appeal / Appeal From Trade Mark Registry Decision

Legal Issues

  1. 1 Whether the mark 'SHAPER' lacked all distinctive character at the relevant date
  2. 2 Whether the addition of 'FUNKY' to 'SHAPER' created a valid and distinctive mark
  3. 3 Whether the hearing officer erred in law or principle in dismissing the invalidation application under section 5(2)(b)

Ratio Decidendi

The hearing officer was entitled to find, on the evidence, that 'SHAPER' lacked all distinctive character at the relevant date and that 'FUNKY' added nothing distinctive. As neither mark would be seen as indicating origin, there was no likelihood of confusion and the grounds for invalidation under section 5(2)(b) were properly dismissed.

Court Disposition

Appeal dismissed