It is a common assumption that when the respondent in an opposition case is declared in default for failure to file his answer, and the hearing officer decides on the basis of the evidence submitted by the opposer, the respondent loses and his trade mark application is rejected. That was not the case in Smith & Nephew Inc v Livingstone Healthcare Corp docketed as IPC No 14-2014-00176 decided by the Bureau of Legal Affairs (BLA) of the Intellectual Property Office of the Philippines (IPOPHL) on February 1 2017. The contested application was for the mark Adler covering surgical instruments, filed by Livingstone in 2013.
In its opposition Smith & Nephew traced its origin over 150 years ago starting as a small pharmacy in Hull, England, which came to be known as T J Smith and Nephew 40 years later after the founder was joined by his nephew Horatio Nelson Smith before his death. The company acquired several companies specialising in orthopaedics, wound management and sports medicine and trauma, and in 2013 it acquired Adler Mediequip Privale Limited, manufacturer and distributor of mid-tier orthopaedic products in the areas of trauma, intramedullary nailing, spine, reconstruction and anthroscopy. Adler Mediequip, which was initially a part of the Sushrut Adler Group of Companies, extensively used and promoted the mark Adler first in India where it had a distribution network of 150 distributors, then in the rest of Asia and parts of eastern Europe. Even before its purchase by Smith and Nephew, the mark Adler was already in 29 countries. In its opposition, Smith and Nephew submitted an affidavit of Louis Strudwick with annexes and website printouts.
The BLA issued a notice to answer to Livingstone in August 2014, but the latter did not submit its answer and was declared in default on January 13 2015.
In its review of the evidence submitted by the opposer Smith & Nephew, the BLA did not find any connection between the opposer and the mark Adler. Hence, the BLA dismissed the opposition and ruled:
Annexes "A" to "I" of Strudwick's affidavit pertain to the Opposer's history and awards while Annex "J" and "K" details the history and/or background of Sushrut Surgicals Pvt Ltd and Adler Mediequip Pvt Ltd, respectively. However, none of these documents proves the Opposer's claim that it acquired Adler Mediequip Private Limited in 2013. The rest of the annexes of Strudwick's affidavit and the remaining website printouts likewise fail to corroborate such claim. Even the supposed communications with Philippine distributors of "ADLER" products do not show the Opposer's participation in the said transactions as only the name of Sushrut Surgicals Pvt Ltd appears in these documents.
Absent any proof that the Opposer indeed acquired Adler Mediequip Private Limited, it cannot inure benefit of the latter's alleged use and/or ownership of the mark "ADLER". Since neither did it present proof its own actual use of the "ADLER" mark before the filing of the contested application, the opposition must fail. In so ruling, this Adjudication Officer simply defers to the basic rule in evidence that each party must prove his affirmative allegation. The basic rule is that mere allegation is not evidence, and is not equivalent to proof.
Editha R Hechanova |
Hechanova & Co., Inc.
Salustiana D. Ty Tower
104 Paseo de Roxas Avenue
Makati City 1229, Philippines
Tel: (63) 2 812-6561
Fax: (63) 2 888-4290
