Mr Mitchell
79.Fox had three witnesses. Jonathan Mitchell has been employed by Fox since July 2015. He said that his role is essentially that of a consultant operations director advising on the company’s operations, including those in Macedonia. Mr Mitchell is a former employee of the Foreign and Commonwealth Office, with expertise in the Balkan region.80.Mr Mitchell said that Fox adopted the name Sivec for its marble using local terminology for marble derived from that area. He provided local documents to back this up. They were of no assistance, however, because Macedonia is not in the EU and local knowledge is irrelevant to the perception of the EU average consumer.81.In his witness statement Mr Mitchell discussed the marble market in general terms, suggesting that ‘Sivec’ had a geographical meaning in that market. But in cross-examination he conceded that he could only speak with authority of the view that would be taken by someone from the EU who was an expert in geography. That was not the average consumer.
- HIS HONOUR JUDGE HACON
- Defendant
- Introduction
- The issues
- The law
- Whether use of the mark can be taken into account
- perception that arises in consequence of the use of the mark as a trade mark and thus as a result of the nature and effect of it, which make it capable of distinguishing the product concerned from those of other undertakings
- The necessary territorial extent of acquired distinctive character
- Summary of the law
- A significant proportion of the relevant class of persons
- The average consumer in the present case
- Acquired distinctive character under art.7(3)
- Use of the Trade Mark
- Whether actual knowledge of a geographical place is necessary under art.7(3)
- The messy reality of what relevant persons think
- The evidence
- Mr Mitchell
- Mr Charles
- Mr Rigopoulos
- Mr Malfas
- Summary
- August 2013 to March 2016
- Conclusion