Trade marks that achieve widespread public recognition are the lifeblood of a great many businesses, forming the foundation of their brands. A High Court ruling in the context of the UK's £2.54-billion-a-year pet food market showed exactly why such valuable intellectual property assets are well worth developing.
In the 10 years since a pet food company began selling products under two two-word trade marks – which were identical save in terms of colour – it had sold 19 million units and achieved a turnover of nearly £10 million a year. It launched infringement proceedings against another pet food manufacturer that began marketing products under a similar name.
In upholding the company's claim, the Court found that it had become a brand leader in the raw pet food market and that its trade marks had attained both a high level of distinctiveness and a strong degree of consumer recognition. The name used by the rival to market its products was to a high degree conceptually similar to the trade marks. There were also, to lesser degrees, visual and aural similarities.
There was ample evidence that those similarities had led to both the likelihood of and actual consumer confusion between the company's products and those of its rival. The Court had no hesitation in finding that the rival had been aware of the company's products when it adopted the similar name. The company had suffered detriment to its reputation as a result.
The rival was likely to have received a leg up in the marketplace due to its choice of a similar name and had to that extent taken unfair advantage of the trade marks. It was also guilty of passing off in that the similar name created a link in consumers' minds between its products and those of the company. The Court's ruling opened the way for the company to seek various forms of relief, including an injunction to restrain the future sale of infringing products and damages or an account of profits generated by the rival's wrongdoing.