Barton & Guestier filed an opposition to Anthony Barton’s trade mark application for BARTON & BARTON in relation to wine and similar services, pressing grounds under section 41 (that ‘Barton’ is a common surname) and section 44 (prior registration for BARTON & GUSTIER).
Despite ‘Barton’ being a common surname (according the usual Office test), the Delegate took the view that the trade mark BARTON & BARTON should be treated as a trade mark consisting of ‘two or more surnames’, which are inherently registrable.
In support of her view, the Delegate noted the acceptance of a number of similar marks which have been prima facie accepted by the Office recently.
Turning to the section 44 ground, the Delegate found that GUESTIER was the dominant element of the opponent’s prior trade mark and would be recalled by consumers as ‘a foreign surname’. Accordingly, the opponent also failed on this ground.