Case No. EWHC-941-(IPEC)

129.The other type of injury relied on by Match was detriment to the distinctive character of the Match Marks.130.In L’Oreal at [39] the CJEU provided the following guidance as regards this aspect of s.10(3): “39. As regards detriment to the distinctive character of the mark, also referred to as ‘dilution’, ‘whittling away’ or ‘blurring’, such detriment is caused when that mark’s ability to identify the goods or services for which it is registered is weakened, since use of an identical or similar sign by a third party leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is particularly the case when the mark, which at one time aroused immediate association with the goods or services for which it is registered, is no longer capable of doing so (see, to that effect, Intel Corporation, para.29).131.In determining whether there has been such dilution, the stronger the link that the sign makes to the protected mark, and the stronger the reputation enjoyed by that mark, the more likely it is that a court will conclude that there has been detriment to it. However, in order to show such detriment, a claimant must prove (by evidence) actual injury to its mark – in the sense that there has been a change in the economic behaviour of the average consumer or at least a likelihood that there will be such a change (see Comic Enterprises per Kitchin LJ at [114] and [116]-[118]) and Skykick per Arnold J at [310].132.On the assumption on which I am currently proceeding (i.e. that there is no likelihood of confusion) and in the absence of any evidence to establish any other form of damage to the distinctive character or reputation of the Match Marks, I have concluded that Match’s claim in this regard must fail. On this assumption, there is no evidence that use of the Muzmatch Signs has led (or is likely to lead) to any change in the economic behaviour of the average consumer.