20 June 2018Trademarks

UKIPO brings mobility scooter mark to a halt

The UK Intellectual Property Office (IPO) has upheld an application to invalidate a trademark relating to mobility scooters.

The IPO published its decision on Monday, June 18.

In April 2017, UK-based mobility scooter and wheelchair company MyHealth Mobility (formerly known as AJ Mobility) was granted a trademark comprising the words ‘My Health’ above the words ‘Mobility & Independence Centre’. The trademark also features a blue heart.

The mark covered goods relating to healthcare services in class 44.

In July 2017, University Hospitals Birmingham NHS Foundation Trust filed an application to have the trademark declared invalid on the grounds that it could be confused with its own earlier trademark for ‘myhealth’ (number 2,625,784), registered in November 2012 in classes 9, 38 and 44.

It argued that the ‘My Health’ aspect of the later trademark was the dominant part of the mark and that the words ‘Mobility & Independence Centre’ are not distinctive in relation to the registered services. It said this constituted a likelihood of confusion between the marks.

The IPO ruled that the goods and services in both of the trademarks must be regarded as being identical.

C J Bowen, on behalf of the IPO, agreed with University Hospitals Birmingham’s argument that the words ‘My Health’ in My Health Mobility’s trademark are the dominant and most distinctive components of it.

“The competing trademarks either consist of, or contain, the words ‘myhealth’ or ‘My Health’ as the only or dominant element,” said Bowen.

“Although the device component and words ‘Mobility & Independence Centre’ in the proprietor’s trademark will contribute to the overall impression conveyed, the competing trademarks are still, in my view, visually similar to an above average degree.”

Bowen also said that the trademarks are regarded as aurally similar to a fairly high degree as the words “Mobility & Independence Centre” in My Health Mobility’s trademark are unlikely to be articulated.

The IPO said that services covered by the trademarks “combined with the degree of visual, aural and conceptual similarity between the competing trademarks” will result in a likelihood of indirect confusion.

Bowen concluded that My Health Mobility’ trademark would lead the average consumer to assume that it is a variant or updated version of the earlier mark.

The IPO cancelled My Health Mobility’s trademark, and the company was ordered to pay University Hospitals Birmingham £600 ($790).

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