When evidence is evidence of evidence ...

A notice on subscription-only service Lawtel drew the IPKat's attention to C & J Clark International Ltd v Four Star Distribution, a ruling by Appointed Person Ruth Annand on 20 December 2006 against a UK Trade Mark Registry decision.

Four Star applied for invalidation of Clark's CICA trade marks for footwear in Class 25, citing a likelihood of confusion with its own earlier CIRCA registered trade mark for clothing in Class 25. The hearing officer dismissed this application on the basis that it had failed to show use of the mark CIRCA on the goods for which it was registered in the five years preceding the date of Four Star's application for invalidity. According to the hearing officer, evidence of invoices did not prove that goods had ever entered the United Kingdom. Four Star said they did, and appealed. Clark agreed that Four Star's use was neither token nor 'internal', but said that the invoices didn't prove that the use had taken place in the UK.

Ruth Annand allowed the appeal and remitted the application for further consideration. In her view

* Some of the invoices could not be relied on as showing genuine use because they were outside the five-year period, but they could be relied on as a backdrop against which to assess any other evidence of use.

* In this context, 'background evidence' could support proof with regard to the territory of use.

* If the hearing officer had considered Four Star's evidence fairly he would have arrived at the conclusion that Four Star had shown that there had indeed been genuine use of its CIRCA mark for goods in the UK (this was supported by fresh evidence, which was admitted).

The IPKat was quite dazzled by the interpretational exercises that went on here: if you think statutes are hard to make sense of, just try making sense of the invoices quoted in the decision. Merpel says, I love the notion that evidence is not evidence of use as such, while being evidence that supports other evidence. This just shows how important it is to be able to manipulate facts in terms of admissibility and relevance.

How to provide evidence of use of a trade mark: what the UK Trade Mark Registry says here
Evidence of use: a perspective from OHIM in Alicante here
And now for a view of evidence of use from the United States here