Condition (vii) - a link
73. Whether the use of the sign gives rise to a link between the sign and the trade mark in the mind of the average consumer depends on a global assessment of all of the relevant factors. The fact that the sign would call the trade mark to mind for the average consumer, who is reasonably well informed and reasonably observant and circumspect, is tantamount to the existence of such a link (see per Arnold J. in Sky plc v SkyKick at [309]). 74. Given my conclusions above regarding the likelihood of confusion arising from the use of the sign, I find that condition (vii) is also satisfied. The use of Battle’s sign would give rise to the requisite link with the Mercury mark.
- Claim No. IL-2020-LIV-000001
- Introduction
- The witnesses
- The issues
- The trade mark issues – general points
- Relevance of EU law
- The average consumer
- section 3(1)
- Is the word mercury descriptive?
- Is use of the word mercury customary?
- Invalidity - bad faith, s.3(6()
- Infringement – the acts said to infringe the trade mark
- Infringement –
- s.10(1) Trade Marks Act 1994
- s.10(2) Trade Marks Act 1994
- Condition (iv)
- Condition (v)
- Condition (vi)
- s.10(3) Trade Marks Act 1994
- Condition (i) - reputation
- Condition (v) - sign at least similar to mark
- Condition (vii) - a link
- Condition (viii) - injury
- Condition (ix) – without due cause
- The s.11(2) defence
- Trade mark infringement - conclusion
- Passing off
- Joint tortfeasorship
- Conclusion