Trade Marks – Average Consumers Can Usually Tell One Brand from Another


Logos emblazoned on football boots, trainers and activewear very often determine purchasing choices. Their value is immense but, as a High Court ruling in a trade mark infringement case showed, some confidence can usually be placed in consumers’ ability to tell one brand from another.

The products of a long-established manufacturer of performance footwear and attire had gained an enviable market reputation, having been favoured by numerous well-known sports teams and personalities. They bore elongated ‘double-diamond’ logos, consisting of two concentric parallelograms lying on their sides. The logos were protected in the UK by registered trade marks.

The manufacturer launched infringement proceedings against a rival active clothing and footwear distributor whose goods, which were largely marketed in the UK via an online marketplace, bore a graphic image in the shape of a square with rounded corners, tilted through 45 degrees.

Ruling on the matter, the Court acknowledged that the manufacturer’s logos have a highly distinctive character. There were some similarities between them and the image used by the rival in that they each involve rhomboid shapes with an outer and inner dominant element and sit at the same angle. However, there were also multiple differences between them and, overall, the Court found that the degree of similarity was very faint indeed.

In dismissing the claim, the Court noted that average consumers can be taken to be moderately attentive, reasonably circumspect and observant. They would be capable of distinguishing between the great many different brands available in the relevant market and aware that products may resemble one another to some extent.

Overall, the Court was not satisfied that there was a likelihood of confusion among a significant proportion of the public interested in purchasing the products in question. Nor was there a real risk of average consumers believing that the rival products came from the same source or from economically linked businesses. Use of the rival’s image did not undermine or erode the attractive power of the manufacturer’s logos and there was no evidence that they were actually linked in consumers’ minds.

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