On September 18 2018, the Seychelles registrar general handed down an important trade mark decision. The case involved an application by a Seychelles company called Intelvision Limited to register the trade mark Intelvision (stylised) in Class 38, and an opposition to that application by the US company Intel Corporation.
Intel Corporation alleged a likelihood of confusion with earlier Seychelles trade mark registrations for Intel in Classes 9, 16, 38, 41 and 42, a likelihood of confusion with a well-known international mark, and dilution. It submitted considerable evidence: evidence that it is the largest manufacturer of semi-conductors in the world, and the manufacturer of the processor that appears in most PCs, evidence that it is listed in international surveys of top brands and evidence of trade mark registrations in some 180 countries.
The registrar general made some early pronouncements: Intelvision operates in a small and specialist market, being one of only three licensed internet service providers in the Seychelles; computer processors and internet services are not that closely related and the two companies cannot be regarded as competitors; and there was no evidence of actual confusion between the two trade marks, notwithstanding coexistence in the Seychelles since 2004.
On the issue of confusing similarity the registrar general quoted this passage from the Canadian case of Ultravite Laboratories Ltd v Whitehalls Laboratories Ltd: "Trade marks may be different from one another and, therefore, not confusing with another when looked at in their totality, even if there are similarities in some of the elements when viewed separately. It is the combination of the elements that constitutes the trade mark and it is the effect of the trade mark as a whole, rather than any particular part in it, that must be considered."
Applying this, the registrar general went on to dismiss the opposition, saying that "although there may appear to be some resemblance, the trademarks in issue, when taken as a whole, are by virtue of their non-common features, dissimilar in sound and appearance, ultimately distinguishable to the average consumer."
This judgment is likely to attract some criticism.
Wayne Meiring |
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