Thank you for choosing an appliance from the MOULINEX range, which is intended to make life easier for you when preparing food.

Description

a b c d Motor unit Speed selector (0/1/2/Pulse) Cord winder Blender jug d1 Lid with pusher-stopper d2 Glass jug d3 Blade unit

Safety instructions

- Read the instructions for use careful ly before using your appliance for the first time and retain them for future reference :any use which does not conform to these instructions will absolve MOULINEX from any liability. - Never leave the appliance within reach of children without supervision. The use of this appliance by young children or disabled persons must be supervised at all times. - Check that the power rating of your appliance matches that of your elec trical system. - This appliance complies with the requirements of the EEC Directives 89/336/EEC and 73/23/EEC. - This product has been designed for domestic use only. Any commercial use, inappropriate use or failure to comply with instructions, the man ufacturer accepts no responsibility and the guarantee will not apply. - Unplug your appliance as soon as you have finished using it and when you are cleaning it or in the event of a power failure. - Do not use your appliance if it is not working correctly or if it has been damaged.If this happens, please contact an approved MOULINEX service centre (see list in the service booklet). 1
- Any connection error will invalidate the guarantee. - Any intervention other than cleaning and normal maintenance by the cus tomer must be carried out by an approved MOULINEX service centre. - Never place the appliance, the po wer cord or the plug in water or in any other liquid. - Never allow the power cord to hang down within reach of children. - The power cord must never be close to or in contact with the hot parts of your appliance, close to a source of heat or resting on a sharp edge. - If the power cord or the plug are damaged, do not use the appliance. To avoid any risk, these must be replaced by an approved MOULINEX service centre (see list in the service booklet). - For your own safety, you should use only the MOULINEX accessories and spare parts which are suitable for your appliance. - All appliances are subject to strict quality control. Practical user tests are performed with appliances selected at random, which explains any slight signs of use. - Handle the blades with great care. They can cause injury. -Do not let long hair, scarves, ties, etc. hang over accessories when in operation. - Use your appliance on a flat, clean and dry surface. - Do not put your fingers or any other object inside the blender jug while in use. - Never run the appliance empty or with dry products only and never pour boiling liquids into it. - Always use the blender jug with the lid in place. - Do not use continuously for more than 1 1/2 mns.Wait for a few minutes before starting the appliance again.

Getting started

- Before using your new appliance for the first time, you should wash the blender jug in hot, soapy water. Rinse and dry with care. - Important notes : - Position the selector (b) to the setting " O " before placing the blender jug on the motor unit. - The appliance will only start if the blender jug is correctly positioned on the motor unit.

Using the blender

- Dampen the seal of the blade unit (d3). - Place the blade unit (d3) in the jug (d2) and fix it in position by turning until it locks (1). - Position the blender jug (d) on the motor unit (a) (2). - Put all the ingredients into the jug without going over the maximum level (1,2 l). For a smoother mixture, put the liquid ingredients in first and run the blender for a moment before put ting in the solid ingredients. - Place the lid (d1) on the jug and lock it in position (3).To make locking easier, dampen the integral seal on the lid.The lid must always be in place when the appliance is in operation. - Plug in the appliance. - Set the speed, using the selector (b). - To stop the appliance, turn the selector (b) back to position " O ".
Tips : - Speed 1 : to start liquid preparations. - Speed 2 : to blend preparations. - Pulse : instant speed obtained by successive movements of the selector (b) in the " Pulse " setting." Pulse " position allows you to process hard ingredients and to give a final touch to your preparation. - For liquid preparations, cover the blades (d3) to avoid splashes in the interior of the jug and to facilitate the blending of the ingredients. - For thick mixtures, you can always stop the appliance during preparation to push the ingredients back down onto the blades. - Do not use continuously for more than 1 1/2 mns.

Ice Crushing

- Put some ice cubes into the jug. - Push by impulse on the " Ice Crusher " button.

Cleaning

- Unplug the appliance. - The blender jug will go in the dishwasher. Rinse and dry each part well. - Clean the motor unit (a) using a damp cloth.Dry with care. - Never place the motor unit in water or under running water. - The plastic base of the glass jug (d2) cannot be removed. - Handle blades with great care. They can cause injury. - Over time the strong coloured natural juices from food such as carrots and beetroot may stain the plastic parts of your appliance - this is normal. - This parts may be cleaned by soaking them in mild bleach (non abrasi ve) straight after use.
What to do if your appliance does not work ?
- Check the electrical connection and/or that the blender jug is correctly positioned. If your appliance still does not work, please contact an approved MOULINEX service centre (see list in the service booklet). HELPLINE: If you have any product problems or queries, please contact our Customer Relations Team first for expert help and advice: 1454 - UK (01) 4751947 - IRELAND or consult our website www.moulinex.co.uk

TRADE MARKS ACT 1994 IN THE MATTER OF APPLICATION No. 2199810 BY MOULINEX S.A. TO REGISTER A TRADE MARK IN CLASS 7 AND IN THE MATTER OF OPPOSITION THERETO UNDER No. 51502 BY EAZYPOWER CORPORATION
TRADE MARKS ACT 1994 IN THE MATTER OF Application No. 2199810 by Moulinex S.A. to register a Trade Mark in Class 7 AND IN THE MATTER OF Opposition thereto under No. 51502 by Eazypower Corporation
BACKGROUND 1. On 9 June 1999 Moulinex S.A. applied to register the trade mark EASY POWER in Class 7 on the basis of an International Priority date of 16 December 1998. Registration was sought in respect of the following specification of goods: Machines for processing foods, graters, blenders, mixers, kneaders, mincers, grinders and food cutters, coffee mills, fruit juicers, fruit and vegetable centrifugal extractors, vegetable peelers, slicers, vegetable cutters, electric knives, salad drainers; knife grinding machines; can opener machines; dish washing machines; cloth washing machines; cloth spin dryers; cloth ironing machines; cloth ironing presses; machines for treating floors and walls, sanders and washers; window-glass washing machines; lawn mowers and other gardening machines; hand-drills and hand-saws for working wood and metals; electric vacuum cleaners, electric motors (except for land vehicles); motor speed regulators and variators (except for land vehicles); spring motors; couplings; gearing and transmission belts; motor powered liquid pumps. 2. The application was accepted by the Registrar and published in the Trade Marks Journal. On 5 October 2000 Serjeants, on behalf of Eazypower Corporation, filed a Notice of Opposition against this application under Section 5(4)(a) of the Act on the grounds that use of the mark applied for is liable to be prevented by the law of passing off. In their Statement of Grounds the opponent claims use of the trade mark EAZYPOWER in the UK on 28 December 1996 in respect of portable and rechargeable vacuum cleaners, screwdrivers, flexible driving tools, other handheld tools, tips and parts for such tools and since that date on a growing range of products, including electrically and manually operated hand tools. 3. The applicant, through its agent Venner, Shipley & Co, filed a Counterstatement denying the grounds of opposition. Both sides filed evidence and asked for an award of costs in their favour. Neither party requested a hearing but the opponent agent forwarded written s submissions for consideration. Opponent Evidence s 4. The opponent evidence consists of a sworn affidavit by Burton Kozak dated 8 August s 2001. Mr Kozak is the President of Eazypower Corporation (the opponent).
5. Mr Kozak states that Eazypower Corporation has continuously sold products and used its trade mark EAZYPOWER in the UK prior to 16 December 1998 (the date of application for the mark in suit). He draws attention to the following specific examples: (i) Sales of products bearing the EAZYPOWER name directly to Attenborough Tools, High Wycombe, Bucks since 28 December 1995 with the sales between that date and 16 December 1998 amounting to $.; Sales of products bearing the EAZYPOWER name directly to Aston Trading, Hayling Island, Hampshire since 18 June 1997 with the sales between that date and 16 December 1998 amounting to the value of $.; Sales of goods bearing the EAZYPOWER name continuously through True Value, Chicago, Illinios by its UK affiliates located in Essex, Cambridge, Suffolk since January 1987; Sales of goods bearing the EAZYPOWER name through Orgill Worldwide Distribution & Retail Services Inc, Memphis, Tennessee to S & S Home Supply, located at Hale Lane, London and others since October 1993.

6. Mr Kozak adds that Eazypower Corporation catalogues have been displayed in the UK continuously by the above stated retailers and distributors since November 1995. Exhibit A to his Affidavit comprises example catalogues from 1991, 1993 and 1994 showing the EAZYPOWER trade mark in use in respect of screwdrivers, screwdriver tips, drill bits, heat guns and soldering irons. 7. Mr Kozak goes on to state that for several years Eazypower Corporation has exhibited at the Cologne Industrial Hardware Fair in Germany and during the 1997 Fair he distributed samples and literature to UK distributors with whom he has an ongoing relationship. Applicant Evidence s 8. The applicant evidence consists of a witness statement by Jean-Pierre Busquets dated s 19 March 2002. Mr Busquets is a Trade Mark Attorney Consultant in the Industrial Property Department of SAS, Groupe SEB Moulinex. 9. Mr Busquets has considered the affidavit executed by Mr Kozak on behalf of the opponent and he states that the use made of EAZYPOWER in the UK by the opponent is very limited. 10. Turning to the applicant use of their trade mark EASY POWER in the UK, Mr s Busquets states that the mark was first used in August 1999 and since that date and up to January 31 2002, 32,043 blenders have been sold in the UK under the mark which approximately equates to 477,615 in value. 11. Mr Busquets refers to Exhibit JPB1 to his declaration which contains an international catalogue for 2000/2001 showing, on page 24, EASYPOWER electronic food blenders.
12. In conclusion Mr Busquet states that since his company has begun to use the mark EASYPOWER in the UK there have been no instances of confusion with other firms trade marks. 13. This completes my summary of the evidence filed in this case. I now turn to the decision. DECISION 14. Section 5(4)(a) of the Act states: 5.-(4) A trade mark shall not be registered if, or to the extent that, its use in the United Kingdom is liable to be prevented (a) by virtue of any rule of law (in particular, the law of passing off) protecting an unregistered trade mark or other sign used in the course of trade.
15. I intend to apply the test outlined in Halsbury Laws of England (4th Edition) as adopted s by Mr G Hobbs QC in Wild Child 1998 RPC at 460. The relevant passages are re-produced below: "The necessary elements of the action for passing off have been restated by the House of Lords as being three in number: (1) that the plaintiff's goods or services have acquired a goodwill or reputation in the market and are known by some distinguishing feature; that there is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the plaintiff; and that the plaintiff has suffered or is likely to suffer damage as a result of the erroneous belief engendered by the defendant's misrepresentation."

To establish a likelihood of deception or confusion in an action for passing off where there has been no direct misrepresentation generally requires the presence of two factual elements: (1) (2) that a name, mark or other distinctive feature used by the plaintiff has acquired a reputation among a relevant class of persons; and that members of that class will mistakenly infer from the defendant s use of a name, mark or other feature which is the same or sufficiently similar that the defendant goods or business are from the same s source or are connected. 4
While it is helpful to think of these two factual elements as successive hurdles which the plaintiff must surmount, consideration of these two aspects cannot be completely separated from each other, as whether deception or confusion is likely is ultimately a single question of fact. In arriving at the conclusion of fact as to whether deception or confusion is likely, the court will have regard to: (a) (b) (c) (d) (e) the nature and extent of the reputation relied upon; the closeness or otherwise of the respective fields of activity in which the plaintiff and the defendant carry on business; the similarity of the mark, name etc used by the defendant to that of the plaintiff; the manner in which the defendant makes use of the name, mark etc complained of and collateral factors; and the manner in which the particular trade is carried on, the class of persons who it is alleged is likely to be deceived and all other surrounding circumstances.
In assessing whether confusion or deception is likely, the court attaches importance to the question whether the defendant can be shown to have acted with a fraudulent intent, although a fraudulent intent is not a necessary part of the cause of action. 16. Thus, to succeed in a passing off action, it is necessary for the opponent to establish that s at the relevant date (16 December 1998): (i) they had acquired goodwill under the trade mark; (ii) that use of the applicant mark would amount to a misrepresentation likely to lead to s confusion as to the origin of their goods or services and (iii) that such confusion is likely to cause real damage to their goodwill. 17. With these considerations in mind I turn to assess the evidence filed in these proceedings. I will consider the issue under the three main headings of Goodwill, Misrepresentation and Damage. GOODWILL 18. The opponent claim continuous use of their mark EAZYPOWER in the UK from 1987 onwards and have provided specific examples of companies selling their goods in the UK. Sales under the mark appear modest and the only examples of goods being sold under the EASYPOWER mark are shown in the catalogues exhibited with Mr Kozak statement s paragraphs 5 and 6 of this decision refer. The catalogues show use in relation to a limited range of products; mainly screwdrivers and bits therefor, also drill bits, heat guns and soldering irons. While the opponent evidence provides no product detail in relation to sales s and provides no information in relation to the opponent market share, it seems to me that the s market for such products must be substantial and the opponent impact in this market must be s relatively small. The applicant Mr Busquets is correct when he states that use made by the s opponent of EAZYPOWER in the UK is very limited. 5

19. Notwithstanding my concerns relating to the extent of the opponent use of and s reputation in their EAZYPOWER trade mark, the evidence suffices, to demonstrate that, prior to the relevant date for these proceedings, the opponent was actively conducting a business which involved the sale of screwdrivers and tips/bits therefor, drill bits, heat guns and soldering irons in the UK. While the extent of this business was limited, in my view it suffices to provide the opponent with the necessary goodwill to mount a passing off action. As stated in Kerly Law of Trade Marks and Trade Names (13th Edition) at paragraph 14-08 on page s 420 under the heading of Reputation: The mark or other indication concerned need not be universally known. A small trader with a limited clientele is as much entitled to protect his brands and business name as any large concern. The overriding consideration, in judging the extent of the reputation, is whether the claimant has built up a goodwill to the point where substantial damage will be caused to it by the acts complained of. 20. However, given the limited use and sales under the opponent EAZYPOWER mark, s their reputation and goodwill must be constrained accordingly and I do not believe the opponent goodwill would extend to all types of hand held or electrically powered tools. s 21. Having found that the opponent enjoys goodwill for screwdrivers and tips/bits therefor, drill bits, heat guns and soldering irons amongst consumers in this field, I go on to consider the question of misrepresentation. MISREPRESENTATION 22. To succeed under this heading the opponent has to show that the relevant public will believe the goods offered by the applicant are goods of the opponent. The relevant public in this case include the general public as the customer for both the opponent and applicant s s goods is by no means limited to trade or specialist purchasers. 23. It seems to me that the question I must answer is as follows: Having regard to the goodwill and reputation found in EAZYPOWER for screwdrivers and tips/bits therefor, drill bits, heat guns and soldering irons amongst customers in the relevant field, will those persons mistakenly infer from the applicant s use of the mark EASY POWER on the goods for which registration is sought, that they are provided by the opponent or are connected? 24. The applicant has shown no use of the mark in suit prior to the relevant date for these proceedings and I must assume notional and fair use across the specification for which registration is sought. 25. Firstly, I turn to a consideration of the respective activities in which the opponent and the applicant are engaged. I have already decided that the opponent has goodwill in its mark but that this goodwill is limited in its extent. Looking at the applicant specification it seems to s me that there is a cross-over and similarity of goods in relation to a number of the goods specified. The opponent reputation lies with a limited range of goods which, in general s 6

terms, could be described as being for use in the building or property repair/maintenance trades or in do-it-yourself activities. The applicant specification includes such goods s whose uses or purposes are similar, namely: (i) (ii) (iii) machines for treating floors and walls; sanders and washers; and hand drills and hand saws for working wood and metals.
26. In my view the goods specified at (i) to (iii) above would share the same users as those of the opponent and reach the relevant customer through the same trade channels. 27. For the other goods within the applicant specification e.g. the machines for processing s foods and ironing clothes, it seems to me that there is either no similarity or very little similarity between these goods on which the opponent has shown use and the goods and indeed, the category of goods for which the opponent mark has been used. While customers s would include the general public, the uses, users and trade channels would largely differ. 28. Another factor to consider is the similarity of the marks in question. The applicant mark s consists of the dictionary words EASY POWER while the opponent mark consists of one s word EAZYPOWER, in my view the element EAZY being an obvious misspelling of the word EASY. I have no doubt that the respective marks are closely similar and in aural use they could not be distinguished. 29. I turn now to my conclusions in respect of misrepresentation. After taking into account all the factors it seems to me that the average customer aware of the mark EAZYPOWER used in relation to screwdrivers and tips/bits therefor, drill bits, heat guns and soldering irons, on seeing the applicant mark EASY POWER used in relation to machines for treating s floors and walls, sanders and washers, and hand drills and hand saws for working wood and metals; would believe that those goods came from the opponent or were linked to the opponent. This would result in a misrepresentation. However, in relation to the remaining goods within the applicant specification, it seems to me that, given the narrow scope and s extent of the opponent use and goodwill, no misrepresentation would result. s DAMAGE 30. Finally, I must consider the question of damage. Following my findings in respect of misrepresentation, it is my view that damage will follow. Where there is goodwill in a trade mark and another uses a closely similar trade mark such that there is a misrepresentation then damage can be inferred. Use of the mark would not be under the control of the opponents and where there is confusion as to goods this may result in damage to goodwill and reputation and/or result in damage through diversion of trade. CONCLUSION 31. The opposition under Section 5(4)(a) of the Act has been successful in so far as the 7
applicant specification covers: s machines for treating floors and walls;
sanders and washers; and hand drills and hand saws for working wood and metals. 32. The opponent has succeeded in part. The applicant must file a Form TM21 restricting the specification of the application by deleting the goods stated above within one month of the date of the expiry of the appeal period. Failure to file the Form TM21 will result in the application being refused in its entirety. COSTS 33. The opponent sought refusal of the application in its entirety and succeeded only in part. Accordingly, I take the view that the most appropriate course of action is to make no order as to costs. Each party shall bear its own costs in these proceedings. Dated this day of October 2002

J MacGILLIVRAY For the Registrar the Comptroller-General