Aldous LJ said: ‘Pumfrey J in the Decon case suggested that the court’s task was to arrive at a fair specification of goods having regard to the use made. I agree, but the court still has the difficult task of deciding what is fair. In my view that task should be carried out so as to limit the specification so that it reflects the circumstances of the particular trade and the way that the public would perceive the use. The court, when deciding whether there is confusion under s 10(2), adopts the attitude of the average reasonably informed consumer of the products. If the test of infringement is to be applied by the court having adopted the attitude of such a person, that I believe it appropriate that the court should do the same when deciding what is the fair way to describe the use that a person has made of his mark. Thus the court should inform itself of the nature of trade and then decide how the notional consumer would describe such use.’
Judges:
Mr Justice Scott Baker, Lord Justice Waller, Lord Justice Aldous
Citations:
[2002] IPandT 299, [2002] EWCA Civ 1828
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Associated Newspapers Limited, Daily Mail and General Trust Plc v Express Newspapers (an Unlimited Company, Incorrectly Sued As Express Newspapers Limited) ChD 11-Jun-2003
The claimants sought to prevent the respondents from starting an evening newspaper entitled ‘THE MAIL’ as an infringement of their registered mark, and as passing off. In turn the defendant challenged the validity of the mark.
Held: The word . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 06 June 2022; Ref: scu.178560
