Case No. EWHC-941-(IPEC)

107.As regards the test for infringement under s.10(3), in Comic Enterprises Kitchin LJ stated, at [111], that:“In Interflora this court explained (at [69]) that a proprietor of a registered trade mark alleging infringement under Article 5(2) must therefore show that the following requirements are satisfied: (i) the registered trade mark must have a reputation in the relevant territory; (ii) there must be use of a sign by a third party in the relevant territory; (iii) the use must be in the course of trade; (iv) it must be without the consent of the proprietor; (v) it must be of a sign which is identical with or similar to the trade mark; (vi) it must be in relation to goods or services; (vii) it must give rise to a link between the sign and the trade mark in the mind of the average consumer; (viii) it must give rise to one of three types of injury, that is to say, (a) detriment to the distinctive character of the trade mark, (b) detriment to the repute of the trade mark, or (c) unfair advantage being taken of the distinctive character or repute of the trade mark; and (ix) it must be without due cause.”108.In this case, there is no issue as regards requirements (ii), (iii), (iv) and (vi) referred to above. Muzmatch’s use of its Signs was clearly use within the relevant territory, in the course of trade, without Match’s consent and in relation to goods or services. The issues, therefore, are whether requirements (i), (v), (vii), (viii) and (ix) are satisfied.