Claim No: IP-2022-000066 - [2024] EWHC 1369 (IPEC)

My finding that there is a likelihood of confusion in respect of Sign 1 undermines the Defendants’ submissions that anyone who encounters Sign 2 will do so knowing they are in a Metro’s shop, in my judgment. Certainly in respect of the class of average consumers who are late-night revellers, a substantial number of those may well be confused into believing they are in a Morley’s, or a shop which is associated with the Claimant. My finding that the get-up of the Metro’s stores are highly similar to those of the Claimant’s shops means that the context in which they encounter Sign 2 will likely reinforce, not reduce, any such confusion and cause them to be further confused that Sign 2 is the Triple M Mark or is associated with the Claimant.

Even for an average consumer of that class who is initially not confused, because they did not look at the shop sufficiently before entering to form a view about what shop they were in, the similarity in get-up of the shop interiors, against which they see on the menu board Sign 2, which I have found a significant part will read or pronounce as ”Triple M” burger, together with the enhanced distinctiveness of the Triple M Mark, is likely to cause confusion between Sign 2 and the Triple M Mark. For those reasons I am satisfied there is a likelihood of confusion on the part of the public for the purposes of section 10(2)(b) TMA.