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

The Claimant submits that the high degree of similarity of Sign 2 to the Triple M Mark, and use in relation to goods and services identical to those for which the Triple M Mark is registered, together with the enhanced distinctive character of the Triple M Mark because of the use the Claimant has made of it, means that I can be satisfied that there is a high likelihood of confusion by both classes of the average consumer: the class of late night revellers who pay a low degree of attention; and also the class of daytime and evening average consumers who pay a medium-low degree of attention. It submits this would particularly be the case if they had entered a Metro’s store without paying much attention to the frontage. In that case, it submits, by looking at the board and ordering the “MMM Burger” orally as a ”Triple M” burger, there is a likelihood that those average consumers would be confused into believing that it was a Morley’s, particularly given the context of that purchase, which is that the Metro’s store get-up is highly similar to that of Morley’s stores, as I have found.

The Defendants submit that in the context in which the average consumer will encounter Sign 2, namely on the menu boards inside Metro’s restaurant, the average consumer would not be confused as to think the MMM sign to be a reference to the goods or services of the Claimant, or associated with the Claimant in any way, because the average consumer would know that it was in a Metro’s and not in a Morley’s. Ms Watkinson further submits in closing that the context of similar get up between the two stores, as I have found, does not contribute to a likelihood of confusion because the average consumer would have noticed that the name above the door was different. She again relies on the evidence of the TikTok videomaker, who believed he was going to a Morley’s but realised it was a Metro’s before he entered the store, and so was not confused by it.