Ashton Chantrielle appeared before the Court of Appeal for the Applicant/Respondent (“Extreme E”) in this second appeal from the UKIPO relating to Extreme E’s trade mark registration for services in Class 41. One of the core issues on appeal was the interpretation of “booking of seats for shows” in Extreme E’s trade mark and its relationship with services in class 41 of the Opponent/Appellant’s earlier mark. At first instance the Hearing Officer had held that there was a likelihood of confusion in respect of said services and, on appeal, the High Court had overturned part of the Hearing Officer’s decision in respect of those services.
This case is now the highest authority on the correct approach that an appeal court should take when considering whether to set aside a decision of a specialist fact finding tribunal especially where the evaluation involved a multi-factorial assessment. The Court of Appeal reiterated that in the absence of any error of law, the appellate tribunal must ask whether the hearing officer’s decision was wrong by reason of an identifiable flaw, such as a gap in logic, a lack of consistency, or a failure to take into account some material factor, which undermines the cogency of the conclusion. The Court of Appeal also reaffirmed to correct legal test, and in particular the interpretation of specifications of goods and services, when assessing the level of similarity between goods and services where one service is incidental to another.
The Court of Appeal allowed the appeal reinstating the decision of the Hearing Officer.