Case No. EWHC-941-(IPEC)

83.Condition (iv) requires a comparison to be made between Muzmatch’s Signs (i.e. the 13 or so logos that include the word “muzmatch” and the various SEO keywords used by Muzmatch that include the word “match”9) and the Match Marks as registered (as set out below). MATCH.COM84.At paragraph 44(e) of its Defence, Muzmatch denies that there is any similarity between the Muzmatch Signs and the Match Marks. In my judgment, that is clearly not correct. These Signs and these Marks all include the word “match” and so there is clearly some similarity and, to that extent, condition (iv) is satisfied. 85.On this basis, the real issue (and this is how I understood Ms Bowhill to put her case) was not that there was no similarity but, rather, as to the extent of that similarity and the impact that that might have on the likelihood of confusion (i.e. condition (vi)). To this end, Ms Bowhill referred to various differences between the Match Marks and the Muzmatch Signs based on one or more of the following factors - (a) the inclusion of “muz” or “Muslim” or “UK” or “United Kingdom” in the Signs, (b) the presence of “.com” in two of the Match Marks, (c) differences in the font or case (upper or lower) used, (d) the heart device used in Muzmatch’s signs until 2016 and (e) the butterfly device added by Muzmatch to its logos in 2016. 86.In dealing with condition (iv), neither party provided a detailed comparison of each of the many Muzmatch Signs in issue as against each of the Match Marks. Instead, they dealt with the issue in general terms. I will do the same and will comment in particular on the five factors referred to in paragraph 85 above. a.“Muz”/”Muslim”/UK – in my judgment, notwithstanding the addition of “muz” to Muzmatch’s logos or the addition of “muslim”, “UK” or “United Kingdom” to its keywords, the “match” element remains a clear and important area of visual similarity between the Signs and the Marks. Further, there is a clear oral similarity in that the average consumer is likely to emphasise the “match” part when enunciating the Match Marks and is likely to give the muz/muslim/UK element and the “match” element equal emphasis when enunciating the Muzmatch Signs (in effect reading them almost as separate words - “Muz Match” or “UK Muslim Match”). I also find that there is a clear conceptual similarity. The average consumer would perceive that the word “match” was being used as a brand, but would also see that it was a reference to the nature of the services (to find a match). Conceptually, the addition of “muz” or “muslim” or “UK” would be seen as merely restricting that same concept somewhat (to find a Muslim match in the UK). b.“.com” – this was a feature of Match’s two Match.com Marks but not of Muzmatch’s Signs (with the exception of logo 1 and of the sign on the business card to which I have referred). However, this does not prevent a clear visual and aural similarity arising from the common use of the word “match”. Further, I do not think that any great conceptual difference arises from the presence or absence of the “.com” element. The average consumer, whilst taking note of this element, is likely to take it to be a reference to the fact that the services are provided online and, therefore, to focus more on the “match” element of the mark.c.Font/case – there are some differences between the font and case used for Muzmatch’s Signs and those used for the Match Marks. However, none of the Signs or Marks is particularly heavily stylised and, bearing in mind the imperfect picture of the marks and signs that the average consumer has in his head, it seems to me that the average consumer is likely to focus more on the similarity in the word used than on the particular font or style in which it is written.d.Heart device – Match’s registered marks did not include the heart device until 2015 (when the Match Device mark was registered). By contrast, a simple heart device was a feature of Muzmatch’s logos from as early as 2011 but was dropped in 2016 and was replaced by the butterfly device. Such devices would have no effect at all when the marks are being referred to orally. Visually and conceptually, the average consumer would notice the presence of the heart. However, given the nature of the services (to find a partner), the very simple way in which the heart was depicted, and the role of imperfect recollection, I do not think that the presence of the heart (or its absence) would significantly affect the assessment of similarity that the average consumer would make based on the common use of the word “match”.e.Butterfly device – as mentioned above, the butterfly device was added to Muzmatch’s Signs in 2016. What I said above in relation to the heart device, seems to me to apply equally to this device.87.For these reasons, I find that there is a medium level of similarity between the Match Marks and the Muzmatch Signs – albeit a similarity that is slightly greater in some cases than in others. For example, there is a slightly higher degree of similarity in the case of logo 2 (because the word “match” is emphasised by being in a different colour to that used for the “muz” element) and logos 7 and 8 (because they do not feature the heart or the butterfly device). It also seems to me that the Muzmatch Signs have a slightly higher level of similarity when compared with the Match Device Mark than with the two Match.com Marks.