In this article for the International Review of Intellectual Property and Competition Law, Julius Stobbs, Geoff Weller and Yana Zhou looked at key UK trade mark and design decisions from the past year: through litigation which began years ago, we are given further guidance from the courts in terms of both inherent and acquired distinctive character. Many of the cases to be discussed shed further light on passing off and we are given further direction in terms of goodwill. Enhanced distinctive character and survey evidence is also discussed.
Furthermore, we also review a case which featured defendants engaging in deceptive activities in scamming rights holders. Another case to be discussed ultimately prevailed because of the own name defence, but how this will square with the EU Trade Mark Reforms will be a question for 2016. The genuine use of a mark and groundless threats also feature in our discussion. As always, the context of a trade mark’s use is found to be crucial in infringement proceedings. Finally, a trend that is apparent this year is the desire for our judges to take into account factors that might be described as relating to “unfair competition” when determining issues of trade mark infringement, despite the fact that the lack of an actual law of unfair competition in the UK has often been described as a weakness of our system.