||All England Reporter
|| All ER (D) 286 (May)
|| EWCA Civ 244
||Court of Appeal, Civil Division
Tuckey, Carnwath, and Jacob LJJ
||Richard Miller QC and Michael Hicks (instructed by Eversheds) for the claimants.
||Lindsay Lane (instructed by Bird & Bird) for the defendants.
||19 May 2006
Passing off - Deception or confusion - Damage to reputation and goodwill - Evidence of goodwill - Trade mark - Whether infringement of mark and damage to goodwill through defendant's registration of domain name - Whether registration of mark limited to certain colours - Trade Mark Act 1994, s 13(1).
In proceedings for passing off, the judge had erred in applying the test for distinctiveness required for the registration of a trade mark, in concluding that the claimants had no goodwill. There had also been damage caused to the claimants' goodwill. In that regard, the judge had erred in limiting himself to damage caused by trade diversion. Such damage could include, inter alia, the injury that was inherently likely to be suffered by any business when on frequent occasions it was confused by customers or potential customers with a business owned by another proprietor or was wrongly connected with that business. There had been no trade mark infringement, as the second claimant had voluntarily accepted a limitation on its trade mark, pursuant to s13 of the in order to overcome an objection of non-distinctiveness.
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