No wish to infringe
22 January 2015
The new year witnessed, aptly perhaps, a decision on trademark infringement proceedings which was triggered by exchange of a Christmas card between the general counsels of the opposing parties. The England and Wales High Court (Chancery Division) in Enterprise Holdings v. Europcar Group UK Limited (13-1-2015) ruled on whether the use of ‘e’ in stylised lower case by both companies in relation to car rentals with green and white backgrounds did, in fact, confuse consumers and whether use by Europcar which entered the UK later amounted to infringement even if not wilful. The opening para of the judgement begins on weary note on the number of issues raised by parties and numerous other disputes related to the same subject and states that ‘parties would be well advised to try to settle their differences on a global basis!’
The court dwelt at length on what would constitute the average consumer/ relevant public and whether foreign nationals visiting UK or residing in UK were likely to be more or less confused and on the heterogeneous nature of population in UK. It decided, based on surveys conducted by the parties that consumers were likely to be misled since the attention level would vary and would be medium at best. It did not accept the argument that claims for passing off are to be assessed from the perspective of the average consumer, who is reasonably well-informed and reasonably observant and circumspect and observed that passing off is part of the English law of unfair competition which had not yet been harmonised within the European Union.