Darkness visible at the IPO

The IPKat dabbled with the occult by reading the decision of Mr Hobbs QC, sitting as Appointed Person in the opposition concerning DARKNESS VISIBLE.

One Mr Ross Heaven applied to register DARKNESS VISIBLE for ‘Arranging and conducting workshops’ and ‘Spiritual and lifestyle counselling’ in January 2006. This was opposed by a Simon Buxton, who argued that he had an earlier right protected by passing off dating back to January 2003.

Heaven and Buxton had collaborated, providing workshops and writing a book entitled Darkness Visible, but this collaboration had come to an end by the end of 2005. The key theme was the spiritual effects of living in total darkness for a period of time. However, both claimed that they had come up with the concept first and had invited the other to join him.

Mr Buxton explained that he had been introduced to the use of darkness during his induction into a ‘small, private shamanic group of bee-keepers known as The Path of Pollen’ by a process introduced to his as ‘darkness visible’. He described that

‘I was myself Apis Mellifera, a male drone, surrounded by forty thousand female workers and, somewhere, our queen, our regent. …I was no longer human, but a member of a completely different genus’ and ‘The Bee Master eventually placed me in what appeared to be an oversized, six-sided dog basket…’

Buxton published his experiences in a book which featured an effusive introduction by Heaven, but by the time of the hearing he claimed that he had ghost-written the book and that ‘it was conceived and written as a work of fiction and that the ‘path of pollen’ does not exist’..

Heaven also provided witness statements from those who had been on his 2001/2 workshops, stating that the techniques described in Buxton’s book had been used by Heaven in those pre-2003 workshops. Buxton produced his own witnesses, and there both sides tried to discredit each other’s witnesses (including, it seems, with the use of black magic altars).

One of the witnesses claimed that her original statement had been forged, and was produced to support Heaven without her knowledge. Another witness refuted this claimined that the two statements had been signed together in a pub in Arundel, and that she had lent the other witness her pen. Mr Hobbs QC noted that the two statements were signed in different coloured inks.

The Hearing Officer found that this was a case of shared goodwill, and that the oppositon would have to be rejected because both Heaven and Buxton were just as entitled as each other to register the mark.

Mr Hobbs QC found that the Hearing Officer had erred as he had adopted a ‘selelctive approach’ to the evidence that did not have the breadth and depth required for the case. A structured approach to assessment was necessary, and this revealed that Mr Buxton’s organisation was entitled to claim the mark because of the use of it made in commerce since January 2003. Heaven’s claim to proprietorship was open to doubt, particularly in the light of his claim that he had been part of an elaborate hoax regarding The Path of Pollen. Also, in oral submissions he had made it clear that he had no documentary evidence of his earlier use of the term.

Mr Hobbs QC criticised Heaven for burdening the proceedings with unnecessary evidence and Buxton for ‘using the proceedings as a vehicle for unimpressive evidence about his self-proclaimed initiation into the so-called Path of Pollen’.

As for the supposedly false witness statement, the Appointed Person noted that he could made a reference to the Director of Public Prosecutions but didn’t becaused he did not think ‘the public interest requires more public resources to be devoted to the further unmasking of bad behaviour in the context of what has plainly been an over-emotional dispute that ran out of control.’

The IPKat can’t help but think that the whole thing was rather a waste of time. The amount of time and effort in assembling the evidence must have far outweighed the value of the mark. As for using the proceedings as a vehicle to publicise the Path of Pollen, the IPKat can think of few less receptive audiences that a roomful of IP lawyers.