Online businesses can stand or fall on the acquisition of Internet ‘keywords’ that put them first on search engine listings – but what happens if two competing companies have very similar names? The High Court considered that issue in the context of the online plumbing business.
Two companies, competing in the plumbing field, did most or all of their business online and had begun trading under similar names in the same year. Company A launched proceedings against company B after the latter bid extensively for keywords that were either identical, or similar, to the former's trade marks.
Company B accepted that its trading name was confusingly similar to that of its rival but submitted that it was a case of honest concurrent use. There was evidence that online shoppers had actually been confused, but the two companies had co-existed peaceably for many years, each trading, without complaint, on an increasing scale.
In upholding company A’s trade mark infringement claim, the Court found that, by its keyword bidding activities, company B had exacerbated the inevitable level of confusion and had thus encroached on its rival’s goodwill. Company A had itself bid for a keyword that was identical to company B’s name and, although it had recently ceased that activity, the latter’s passing off claim in that respect was also upheld. The Court would hear further argument in respect of relief.