Case No. EWHC-941-(IPEC)

113.There is an issue as to whether, in the mind of the average consumer, use of the Muzmatch Signs would give rise to a link between those Signs and any of the Match Marks. 114.As regards what constitutes a link for these purposes, it is clear from Specsavers ([2012] EWCA Civ 24) at [120]-[121] that what is required is a certain degree of similarity between the Marks and the Signs such that the average consumer would make a connection between them. It is not necessary that the average consumer would be confused. It is simply that, taken in context, the sign would call the registered mark to that person’s mind.115.Although I am considering the application of s.10(3) on the assumption that I was wrong to conclude that there was a likelihood of confusion, the factors that led me to reach that conclusion would, in my judgment, establish a link in the mind of the average consumer as between the Muzmatch Signs and the Match Marks. In summary, by 2011 the 1996 Match.com Mark had established a very significant reputation in the market (which was also enjoyed by the 2017 Match.com Mark from its filing date), there is medium level of similarity between the Match.com Marks and the Muzmatch Signs, and there is either an identity or a reasonably high level of similarity between the parties’ goods/services. As the use made of the Muzmatch Signs was clearly use intended to be distinctive (as a brand) rather than descriptive, I am satisfied that the average consumer would have made a link between those Signs and the Match.com Marks. I am aware that the evidence of Mr Younas and Mr Craig was that the Signs did not create any link in their minds. However, in this respect, I do not think that their views are representative of those of the average consumer.116.The position as regards the Match Device Mark is, again, slightly different given that it had no acquired distinctiveness in itself as at its relevant date of 3 March 2015. Nevertheless, for the reasons set out above, I find that the average consumer (being aware of the extensive use made by the Claimants of the name “Match”) would have made a link between the Muzmatch Signs and this Mark as well.117.I also note that the likelihood that users would make a link between Muzmatch’s keywords and the Match Marks is clear from the fact that Muzmatch’s SEO strategy involved the use of the names of other dating service providers including, as from 2015, of the name Tinder (see paragraphs 58 and 59 above). The SEO strategy of using such keywords relied on the fact that users would make a link between those keywords and those service providers.