For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Sunday, 29 January 2012

When cutting and pasting is 'unpalletable'

We are all familiar with judgments that contain cutting comments, and which give one or other party to a dispute a pasting -- but not every day do we come across judgments about cutting and pasting, particularly when the object of the judge's attention is itself a judicial decision. And that's exactly what happened in Invalidity Application no.83707 in the name of Pass J Holdings Ltd in relation to trade mark registration no.2512671 in the name of Ben Spencer, Case O-427-11, a decision of Geoffrey Hobbs QC last November, sitting as an Appointed Person.

The contested trade mark in this case was a figurative mark (right) containing the words "online pallet" in respect of "non-metal pallets for goods handling and/or loading, transportation and freight, including but not limited to pallets made of wood or plastic" (Class 20) and "transport, freight, distribution, warehousing and logistics services including: the collection and delivery of goods; the transportation of goods including but not limited to transportation by road; goods handling services including: packaging or other conditioning of goods for transportation; the provision, including hiring, of artefacts for the purpose of transporting goods, including but not limited to the provision of pallets; the provision of warehousing or other goods storage facilities; the provision of one or more of the above services via Internet ordering" (Class 39).

In May 2011 the mark was declared invalid.  The trade mark proprietor appealed on various grounds, including serious procedural irregularity: it appeared that parts of the Hearing Officer’s decision had clearly been cut and pasted from an earlier Decision, resulting in the insertion of incorrect dates of registration of various marks, of the inclusion of names of persons having nothing to do with the matter and with reference to the wrong section of the Trade Marks Act 1994.

Setting aside the earlier decision and remitting the invalidity application to the Registrar to be heard by a different Hearing Officer, the Appointed Person observed that he had no power to award costs against the Registrar -- but that he would have awarded costs if he had such power [the Kat hears that the Registrar did the honourable thing and paid the parties' costs. presumably ex gratia].  The Appointed Person couldn't deal with the substantive grounds of appeal at this stage without usurping the function of the Registrar and depriving the parties of the opportunity to be heard by two levels of decision-taking, since there would have been no appeal against his decision.

The IPKat is not without sympathy for the Hearing Officer, since cutting and pasting has become a regular feature of the preparation of judicial decisions at all levels and it can be difficult for tired eyes and minds beset by déjà-vu to pick up cut-and-paste errors when proof-reading. Much the same can be said about articles submitted for publication, where evidence of inaccurate cutting and pasting is generally spotted by editors before a potentially embarrassing publication can result.  Merpel wonders how often cut-and-paste errors don't get noticed at all but we are losing the skill of accurate reading.

Cut-and-paste or copy-and-paste here
Tips on better proof-reading here

A kat-pat goes to barrister Thomas Elias (Serle Court) for drawing the Kats' attention to this decision. 

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