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ARTICLE · 22 MARCH 2015

Trade marks: Lift Shop - "going down"

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Use of elements of a competitor's trade mark on a website – trade mark use or descriptive use?

AustraliaIntellectual Property
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Lift Shop Pty Ltd v Easy Living Home Elevators Pty Ltd [2014] FCAFC 75

KEY ISSUE

Use of elements of a competitor's trade mark on a website – trade mark use or descriptive use?

FACTS

LS and ELHE were direct, aggressive competitors, each supplying disability platform elevators for home use.

ELHE's search engine optimisation consultant advised that ELHE could improve its search engine rankings by including "lift shop" in its key words, website title and website, an example search result being as follows:

Easy Living Lifts | Home Elevators | Lift Shop – Lift Shop

LS holds a registered trade mark for the LIFTSHOP logo covering elevators/lifts (class 7):

LS sued ELHE alleging trade mark infringement, breach of section 18 of the Australian Consumer Law (ACL) (misleading and deceptive conduct) and passing off (this ground not pursued).

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