Tuesday, 25 June 2013

The right sort of confusion

On 31 July last year, Hildyard J found the defendants, Okotoks Ltd, liable for passing off and infringement of a Community trade mark (not available on Bailii, as far as I can see): the contest was FINE & COUNTRY v FINE for estate agents. The defendants are better known under the name "haart" which we must all have seen on estate agents' boards, and (if you are anything like me) wondered about. In Okotoks Ltd & Anor v Fine & Country Ltd & Ors [2013] EWCA Civ 672 (14 June 2013) the Court of Appeal upheld that judgment.

The defendants argued that, even if (as the judge had found) there was a likelihood of confusion between the CTM and their sign, it was a type of confusion that public policy tolerates - "good confusion", if you will, as I certainly do, because that looks like quite a nice turn of phrase - because it refers to the quality of what the business concerned has to offer. It is laudatory: it tells you that they are selling high-quality properties (though if they are new and have one bedroom they will be smaller than elsewhere in Europe). For several reasons the judge did not think that the confusion was tolerable, and the Court of Appeal agreed. It also agreed on the passing off point.

The leading judgment (that of Lewison LJ) runs to 125 paragraphs, 40 pages, and I haven't found anything in it that I need particularly to draw to your attention - all good stuff, but nothing earth-shattering, even just the slightest bit of shattering. However, I should point you to the IPKat, who picks up on the point that the trial judge was said by the Court of Appeal to have got some things wrong, and who asks some questions about when the Court of Appeal may substitute its understanding of the facts for those of the judge (especially in the light of the recent Lumos judgment, in which Lloyd LJ also sat). See here where there is also a link to the Kat's report of the first instance judgment.

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