The Defence and Counterclaim
8.Aside from the Counterclaim, the defence advanced is that the word “slim” lacks distinctiveness in the relevant field, so that the average consumer would not assume any connection in trade between the claimants’ and defendants’ goods. Therefore, the defendants say, there can be no likelihood of confusion within the meaning of s.10(2). There is no reference to s.11(2)(b) of the 1994 Act. I understand the argument to be that Slim Sauce is so descriptive that its use cannot affect the origin function of the SLIM SAUCES trade marks. It seems to me that this defence cannot succeed if the Counterclaim brought under s.3(1)(b) and (c) of the 1994 Act does not succeed.9.It is alleged in the Counterclaim that all the trade marks were invalidly registered on the ground they consist exclusively of signs which may serve in trade to designate characteristics of the goods within the meaning of s.3(1)(c) of the 1994 Act, namely that they are low calorie products which will assist a person to slim. Alternatively, for the same reason, the trade marks are devoid of distinctive character within the meaning of s.3(1)(b) of the 1994 Act.10.The defendants further counterclaim that with the exception of the 317 Mark the claimants’ trade marks stand to be revoked for non-use pursuant to s.46(1)(b) of the 1994 Act.