Section 11 and its predecessors were designed not so much for the protection of other traders in the use of their marks or to protect their reputation but for the protection of the public. The test of confusion in section 11 is not the same as the test for passing off. Lord Upjohn also said: ‘It is not necessary in order to find that a mark offends against section 11 to prove that there is an actual probability of deception leading to a passing off or (I add) an infringement action. It is sufficient if the result of registration of the mark will be that a number of persons will be caused to wonder whether it might not be the case that the two products come from the same source. It is enough if the ordinary person entertains a reasonable doubt, but the court has to be satisfied not merely that there is a possibility of confusion; it must be satisfied that there is a real tangible danger of confusion if the mark which it is sought to register is put on the register.’
Judges:
Lord Upjohn
Citations:
[1969] RPC 472
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Hunt-Wesson Inc v Chocosuise CA 2-Jul-1998
The applicant had sought registration of the ‘Swiss Miss’ mark. Objection was raised on the ground that it was misleading in suggesting any connection with Switzerland.
Held: The appeal succeeded as to some uses, but not in general. The court . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 23 November 2022; Ref: scu.258730