21 1938 55 rpc 125 5 0 22 1940 57 rpc 137 23 at page

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21 (1938) 55 R.P.C. 125 5 0 22 (1940) 57 R.P.C. 137 23 At page 145 Downloaded from by Makerere University user on 03 September 2019
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303 [No. 9] Chancery Division Jacob J. I do not consider that the evidence filed to support the registration was anywhere near enough to support the conclusion that when the mark was registered, it was distinctive. Yes it had been used for about 5 years in 5 conjunction with Silver Spoon, but it was not proved that the public regarded it as a trade mark - a reliable badge of trade origin - on its own. Further the use was only for what was essentially an ice cream topping. It did not cover the full range of goods covered by the registration. 10 What then of the position now? British Sugar rely upon more extensive evidence. First there is a great deal more use of exactly the same type as went on before. Sales figures went on going up - to nearly £3m p.a. Since introduction in 1986 sales over the 10 year period total about £13m. of which over half have taken place since registration in September 1992. The product has just over 50% 15 of the ice cream topping market sector. Next British Sugar rely upon evidence from Mrs. Nash MBE. She was in public relations at British Sugar. She took telephone inquiries and dealt with letters from the general public. People sometimes complained when a flavour disappeared (blackcurrent did) or wanted information on availability (for instance when the toffee flavour came out, 20 magazines, mainly at British Sugar's instigation, published recipes for making banoffi pie, a dessert made from bananas, toffee and ice cream). She said that customers often referred simply to "your "Treat" range". But of course all the customers concerned, whether writing or telephoning, knew they were dealing with Silver Spoon the manufacturers. I do not think Mrs. Nash's evidence 25 establishes that the general public perceive the word "Treat" to be a badge of trade origin in itself. I think her evidence does show recognition of the word amongst British Sugar customers, but recognition does not necessarily mean recognition as a trade mark. 30 British Sugar also rely upon a market survey. It was conducted by National Opinion Polls ("NOP"). NOP conducted what they call an omnibus survey. Trained interviewers visited the homes of people selected essentially at random. I do not need to go into detail as to how the selection was made. The interviewers asked those of the persons selected who were willing to be interviewed a series of 35 questions, each about a different topic. On this occasion the second topic was the "Treat" survey relied upon. The interviewer (who was equipped with a personal computer) asked the following questions: 1. Do you ever buy sweet-tasting sauces and toppings, for example sauces 40 and syrups for use in or on desserts and ice cream? If the interviewee said "no" the questioning proceeded to a different topic.
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  • The Land, Makerere University, SONS LTD, James Robertson, Jacob J

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