Case No. EWHC-3296-(IPEC)

52. As regards condition (iv), the parties’ contentions could not be more different. Equisafety argues that Battle’s sign (if not identical) “could not be more similar” to the registered mark. In contrast, Battle argues that if there is any similarity at all it is at “a vanishingly low level”. In my judgment, the truth falls between these two extremes and I find that the average consumer (particularly bearing in mind the element of imperfect recollection) would see Battle’s sign as being moderately similar to the registered mark. This seems to me to follow from the obvious visual and aural similarities that clearly exist given that the word mercury is a part (and not an insignificant part) of Battle’s sign. There seems to me to be less conceptual similarity given that Battle’s sign overall conveys the concept of a high visibility, silver coloured, reflective product whereas the mark Mercury conceptually does not point to a high visibility, reflective product but rather to a product with unusual (mercurial), god-like or even celestial but unspecified qualities.