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Preliminary introduction to Infringement
The rights conferred by a registered trade mark are set out in Article 5 of the TM Directive. Article 5 provides as follows:
1. The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade:
(a) any sign which is IDENTICAL with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered;
Here the first requirement is the identification of the defendant´s sign for the purposes of the comparison. In most cases there will be no difficulty – it is either there or not. However it is possible for the sign to be hidden or swamped. Sometimes, the distinctive element is used in conjunction with descriptive or semi-descriptive words. If the additional words are wholly descriptive then they are unlikely to be perceived as being part of the sign. If they are not wholly descriptive or are presented in a visually arresting way then they are more likely to be perceived as part of the sign. Each case must depend upon its own facts and must be considered from the perspective of the average consumer.
Once the defendant´s sign has been identified it must be compared with the registered mark to determine if it is identical. Again, this is a matter to be considered from the perspective of the average consumer. A sign will be identical with the registered mark where it reproduces, without any modification or addition, all the elements constituting the mark or where, viewed as a whole, it contains differences so insignificant they may go unnoticed by the average consumer. The mark and sign must be so close that one could be considered a counterfeit of the other.
We have seen above in Reed Executive Plc v Reed Business Information Ltd  R.P.C. 40, where it was held that REED is not identical to REED BUSINESS INFORMATION.
i) The claimant was proprietor of the mark VANTAGE for ``operating incentive schemes´´. The defendant operated a loyalty card scheme under the words VANTAGE REWARDS. Held the marks were identical because the word REWARD was merely descriptive of the services offered.
ii) IBM was proprietor of the trade mark WEBSPHERE in respect of computer software and software for web site development. The defendant changed its name to Web-Sphere Ltd and began to use the trade mark WEB-SPHERE on its website and in relation to computer software and internet related services. Held the marks were identical, as they sounded exactly the same and the presence of the hyphen would go unnoticed by the average consumer.
(b) any sign where, because of its IDENTITY with, or SIMILARITY to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the trade mark.
This subsection extends the ambit of infringement in particular circumstances where neither the marks nor goods or services need to be identical to those the subject of the registration. The goods or services the subject of the registered mark and those the subject of any alleged infringing use must be the same or similar.
Please read: Pfizer Ltd and Pfizer Incorporated v Eurofood Link (United Kingdom)
Ltd, High Court of Justice (Chancery Division)  E.T.M.R. 896,
where the claimant
was the proprietor of the mark VIAGRA, registered in Class 5 in respect of veterinary
preparations and pharmaceutical substances. The defendant proposed to market a beverage to
be used as a mixer under the mark VIAGRENE. Held, once considered in the light of the
defendant´s intention, the similarity between the goods became more pronounced and
infringement was established.
There can only be infringement where there exists a likelihood of confusion, which includes a likelihood of association. The risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, economically linked undertakings, constitutes a likelihood of confusion. The sort of confusion required to satisfy this provision is confusion as to origin.
The likelihood of confusion is to be assessed globally taking into account all relevant factors, including the degree of similarity between the relevant marks, the degree of similarity between the relevant goods or services, the likely perception of the marks in the minds of the average consumer of the goods or services in question and the degree of distinctiveness of the earlier mark.
i) The claimant owned and operated a very successful inexpensive Japanese style noodle bar and restaurant under the trade mark WAGAMAMA. The defendant decided to set up an American theme restaurant with Indian decor and food and called it RAJAMAMA. Held, the marks were being used in relation to comparatively inexpensive restaurant services where imperfect recollection was likely to play an important role, and the fact that WAGAMAMA was meaningless made imperfect recollection more likely. There was a substantial likelihood of confusion because some members of the public would think the marks were the same and others that they associated in the sense that one was an extension of the other or otherwise derived from the same source.
ii) The claimant operated BP service stations under a livery consisting of the extensive application of a particular green colour to their prominent surfaces. It also registered as a trade mark the colour when applied to exterior surfaces of such premises. The defendant operated a chain of service stations under the name TOP. These stations were subsequently given a new brand image in which green was adopted as the main colour (albeit of a slightly different shade to that of BP). Held, the claim for trade mark infringement succeeded. There was a likelihood of confusion when motorists traveling at speed saw a green station at a distance and made preparations to turn off into the station; such motorists were liable to continue the
manoeuvre even though they might appreciate that the petrol was not that of BP as they neared the station.
Article 5(2) states that
any Member State may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trade mark in relation to goods or services which are not similar to those for which the trade mark is registered, where the latter has a REPUTATION in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
This subsection clearly applies to all goods and services. The above position is analogous to that in the US where protection is provided against the dilution of famous marks by the Federal Trademark Dilution Act which amended the Trade Mark Act of 1946 to provide a remedy against another person´s commercial use of a mark or trade name if that use ``causes dilution of the distinctive quality´´ of the famous mark. It defines dilution as the ``lessening of the capacity of a famous mark to identify and distinguish goods or services´´. The Supreme Court has affirmed that the provision requires a showing of actual dilution, rather than a likelihood of dilution.
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115 U.S.,2003,
claimants owned the Victoria´s Secret trade mark and sold moderately priced, high quality,
attractively designed lingerie. They sued the defendant who opened a store called Victor´s
Little Secret selling lingerie and adult toys and novelties. The Court of Appeal held that this
was a classic instance of dilution by tarnishing (associating the Victoria´s Secret name with
sex toys and lewd coffee mugs). The Supreme Court reversed this decision on the dilution
count on the basis that there was no evidence of any lessening of capacity of the Victoria´s
Secret mark to identify and distinguish the claimant´s goods or services. At least where the
marks at issue were not identical, the mere fact that consumers would associate the junior
user´s mark with a famous mark was not sufficient to establish actionable dilution.
Daimler Chrysler AG v Alavi (t/a Merc)  R.P.C. 42 Chancery Division,
claimant made Mercedes motor cars and was the proprietor of various trade mark registrations
in respect of the words MERCEDES and MERC in respect of vehicles. The defendant sold
clothes under the trade mark MERC. Held, there was no possibility of confusion as to origin
and although the word MERC might be recognised by some people as an abbreviation of the
MERCEDES mark there was no evidence the defendant derived any advantage from this
L'Oreal SA v Bellure NV 2010 WL 1990595 Court of Appeal (Civil Division),
decision of the European Court of Justice was discussed and shown to mean that the appellants' use of comparison lists
showing which of their products corresponded to which branded perfume infringed the
registered trade marks for those perfumes.
It should be noted that all the above provisions in Article 5 relating to infringement are qualified by the expression ``uses in the course of trade a sign´´. Broadly, use in the course of trade calls for use in the context of a commercial activity with a view to economic advantage, and not as a private matter.
The question whether the expression ``uses in the course of trade´´ carries with it the requirement that the offending sign must be used as an indication of origin, in order to infringe has been clarified by the ECJ in the following case:
Please read: Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik (C-245/02)
 E.T.M.R. 27 ECJ,
with special emphasis on paragraphs 59 – 64. It was thus held by
the court that in order to establish infringement, a claimant must prove that the defendant is
using the sign in issue in a trade mark sense, that is to say as an indication of origin or so as to
create the impression that there is a material link in the course of trade between the goods or
services in issue and the trade mark proprietor.
According to Article 5(3), activities which constitute use of a sign include: affixing the sign to the goods or to the packaging thereof; offering the goods, or putting them on the market or stocking them for these purposes under that sign, or offering or supplying services thereunder; importing or exporting the goods under the sign; or using the sign on business papers and in advertising.
The most commonly cited defenses are as follows:
i) The activities complained of were performed with the consent of the proprietor. It should be noted that Article 5 of the TM Directive makes it clear that the exclusive rights in a trade mark are infringed by the use of the trade mark in the United Kingdom without the consent of the proprietor.
ii) The use complained of is use in relation to the genuine goods or services. Article 7 of the TM Directive provides that the trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent. This is also known as the doctrine of ``Exhaustion of Rights´´. This is however subject to legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.
iii) The registration is invalid or liable to be revoked.
iv) The defendant has an independent right to use the mark arising from his own registration. Further, Article 9 of the TM Directive provides for the effect of acquiescence. It states that where the proprietor of an earlier trade mark has acquiesced, for a period of five successive years, in the use of a later trade mark registered in that Member State while being aware of such use, he shall no longer be entitled on the basis of the earlier trade mark either to apply for a declaration that the later trade mark is invalid or to oppose the use of the later trade mark
in respect of the goods or services for which the later trade mark has been used, unless registration of the later trade mark was applied for in bad faith.
Additional grounds of defence are laid out in Article 6 of the TM Directive. It deals with the limitation of the effects of a trade mark. It provides that a trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade:
(b) indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services;
(c) the trade mark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts;
provided he uses them in accordance with HONEST PRACTICES in industrial or commercial matters.
i) The Gillette Company and Gillette Group Finland Oy v LA-Laboratories Ltd Oy.
Case C-228/03, ECJ,
especially from paragraphs 40 – 49, to view the Court´s explanation
about honest practices in this context.
ii) Portakabin Ltd v Primakabin BV (C-558/08)  E.T.M.R. 52, ECJ,
for the latest
judgment regarding sale of second hand goods through the internet.
iii) Asprey & Garrard Ltd v WRA (Guns) Ltd (t/a William R Asprey Esquire) 2001 WL
1135162 Court of Appeal (Civil Division),
where use of own name was disallowed as a form
Examples to show that use of valid trade marks is not to be allowed except where ``necessary´´ to indicate the purpose:
i) BMW complained about a garage business which issued advertisements such as ``Repairs and maintenance of BMW´s´´ and used the descriptions ``BMW specialist´´ and ``Specialised in BMW´s´´. Held, by the ECJ, where an independent trader carried out the maintenance and repair of BMW cars or was a specialist in that field, that fact could not in practice be communicated to customers without the use of the BMW mark.
ii) The defendant was an approved Volvo dealer but after the cessation of its authorised dealership began to use the word VOLVO together with the words ``independent´´ and ``specialist´´, but in much smaller lettering. Held, the manner of use was calculated to cause confusion and accordingly did not satisfy the requirements of defence to infringement.
Passing off under Common Law is a peculiarity of the English legal system. Passing off is a single Common Law ``cause of action´´ which can apply in a very wide range of factual situations. It is derived from the Law of Torts. Tort law is the name given to a body of law
that creates, and provides remedies for, civil wrongs that do not arise out of contractual duties.
A person who is legally injured may be able to use tort law to recover damages from someone
who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines
what constitutes a legal injury, and establishes the circumstances under which one person may
be held liable for another's injury. Torts cover intentional acts and accidents.
In the classic sense, there are five characteristics which must be present in order to create a
valid cause of action for passing off: (1) a misrepresentation (2) made by a trader in the course
of trade, (3) to prospective customers of his or ultimate consumers of goods or services
supplied by him, (4) which is calculated to injure the business or goodwill of another (in the
sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage
to a business or goodwill of a trader by whom the action is brought (or in a quia timet action)
i) Erven Warnink BV v J Townend & Sons (Hull) Ltd  R.P.C. 31, House of Lords,
(Advocaat case) to understand the concept of passing off under common law.
ii) Reckitt & Colman Products Ltd v Borden Inc  R.P.C. 341, House of Lords,
Lemon case) to understand the concept of the classical trinity.
It is important to note that an action for passing off lies whether the trade mark is registered or
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