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3.10.2 Other blank space conditions

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Variations may be allowed to the standard blank space condition.

The first example of such a variation is set out in the TIME case²⁷, where the mark under consideration was an application for the following device in relation to “magazines (publications)” in class 16:

[image] Time

Tookey Q.C. held that the above mark was “a trade mark of rather special character” and he did not see why registration:

… should not be extended to include the border associated with the heading, if it is of a sufficiently distinctive character. I appreciate the appellants’ [Time, Inc.] difficulty in giving an undertaking that the pictorial matter included week by week within the border would always be devoid of trade mark character, because it might well be that the matter so depicted would be of trade mark significance in relation to some goods entirely unconnected with publications. Bearing in mind there is good ground for saying that the public recognize and will continue to recognize the constant features of the cover as being the trade mark of the applicants’ goods (these being the features sought to be registered) and will not regard the transient matter, whatever it may be, as having any trade mark significance in relation to the magazine.

Tookey Q.C. therefore confirmed the following blank space condition could be entered in that instance:

It is a condition of registration that the blank space in the mark as shown in the form of application shall, when the mark is used, be occupied only by matter that has no trade mark significance in relation to goods [services] in respect of which the mark is registered. [Emphasis added]

Where there are special circumstances (such as set out in the TIME case), the Office will accept the entry of the following condition instead of the standard blank space condition.

It is a condition of registration that the blank space in the mark shall, when the mark is in use, be occupied only by matter that has no trade mark significance in relation to goods [services] in respect of which the mark is registered.

The second example of an acceptable variation to the standard blank space condition is where the applicant has provided evidence sufficient to satisfy the Commissioner that the applicant has customarily and for a reasonable length of time inserted its own registered trade marks in the blank space for specifications within that of the mark being examined.

In such a case the following condition (based on the condition set out in Castrol Limited’s Trade Mark [1972] RPC 531) may be entered

It is a condition of registration that the blank space in the mark shall, when the mark is in use, be occupied only by one or more registered marks belonging to the owner of the mark which are registered in respect of goods [services] included in the specification of the present application with or without the addition of matter of a wholly descriptive and non trade mark character.

Footnote

²⁷Re TIME Trade Mark [1961] RPC 381

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3.10.2 Other blank space conditions

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