Monday, 18 July 2011

Summary judgment for trade mark infringement

Lewis v Client Connection Ltd. [2011] EWHC 1627 (Ch) (06 July 2011) is a case in which the the claimant, who runs a much-used website called "Money Saving Expert" sought summary judgment against the defendants who were trading as "Money Claiming Expert". The application for summary judgment was granted, though not under all heads.

Mr Lewis claimed three types of trade mark infringement, under section 10(1) (double identity), (2) (likelihood of confusion) and (3) (dilution) of the Act. The first was a little on the fanciful side, because it turned on the defendant's trading name being misheard when they cold-called (which was how they gathered business). There was a suggestion that their telephone agents were actually using the claimant's trade name, but either way this was not a suitable claim for summary judgment.

The second claim was another matter, though. Although there were witnesses who had clearly not been confused (the terms of their emails to Mr Lewis's business revealed that) actual confusion is not what is needed: only a likelihood of it happening has to be shown. The judge (Norris J) gave them summary judgment under that head.

He went on to say that he was satisfied, based on the number of people who visited the site, that money Saving Expert had a reputation sufficient for section 10(3) to apply, so he would also have been minded to give judgment in the claimant's favour under that heading too. But having given judgment on the basis of likelihood of confusion, there was no need to go on.

The judgment contains a brief and therefore handy review of the case law on identity between trade marks and on similarity and likelihood of confusion, and also the law on summary judgment, so it's worth a look - and not very long, either.

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