In increasingly competitive markets, and in a digital age where brand imagery and other intellectual property (IP) is easily accessible, making it more susceptible to replication, protecting your brand has never been more important.
Two recent cases demonstrate the value a registered trade mark can have in protecting your business, provided your rights are proactively managed.
Enterprise v Europcar
At the beginning of 2015, the high court ruled in favour of Enterprise Rent-a-Car in its claim that Europcar’s new branding, which involves a stylised ‘e’, infringes its own stylised ‘e’ trade mark.
While some may argue that the similarities end at the existence of the letter and a green background, the decision was reached on the basis that the average consumer would not have the advantage of seeing the marks side by side. This means that imperfect recollection creates a likelihood of confusion. This was also found to be the case when the infringing logo was used in combination with the word ‘Europcar’.
It’s important to note that this ruling does not mean businesses can claim that their trade mark has been infringed wherever a logo appears remotely similar to it, as the likelihood of confusion depends, among other things, on how much attention the average consumer of the product or service would pay to the branding.
Equally important is the fact that Enterprise and Europcar are direct competitors, both geographically and in terms of the services they provide.
IPC Media v Media 10
The Enterprise ruling has come shortly after a ruling in October 2014 regarding the words ‘Ideal Home’, which was registered as a trade mark by IPC Media in 2006. IPC is the publisher of Ideal Home Magazine, which has existed since 1920, and launched an online shop in 2009.
The Ideal Home Show has existed since 1908, and has never been affiliated with Ideal Home Magazine. The Show was purchased by Media 10 in 2009, and the Ideal Home Show Shop was set up online shortly afterwards.
In this case, the high court not only found that the trade mark had not been infringed, but also refused to declare the trade mark invalid. The co-existence of the two brands for nearly 100 years meant that, although the trade mark’s registration could not be legally opposed, the defendant’s continued use had no material effect on its function because the public were used to the two brands co-existing. In essence, both sides lost.
This ruling is an extension of the position established in 2012, when it was decided that the co-existence for over 30 years of two ‘Budweiser’ beers (one American, the other Czech) meant that the American Anheuser-Busch could not have the Czech Budvar’s trade mark declared invalid.
What does this mean for businesses?
This demonstrates that while Enterprise has utilised their trade mark to strike a blow to a competitor, IPC Media and Media 10 have both missed opportunities by failing to properly manage their rights.
In this fast moving digital world it has never been easier for trade marks to be infringed upon, so it’s essential you take proactive advice on protecting your trade marks and speak to a specialist intellectual property lawyer. For more information on protecting your intellectual property, please contact Sean Gibbs on 01772 258321.