A Weak Mark, A Strong Case: Practical Lessons For Brand Owners From Flowerbx

The Intellectual Property Enterprise Court (IPEC) has found that luxury online florist Flowerbx Limited's trade mark FLOWERBX is valid and has been infringed by Flowers Box London Limited's use of the signs FLOWERSBOX, FLOWERS BOX and FLOWERS BOX LONDON. 

The decision is a useful reminder that combining descriptive words does not necessarily result in a descriptive trade mark, and that strong evidence of brand recognition and actual consumer confusion can play an important role in establishing infringement.

The IPEC Decision 

The mark was not descriptive and the invalidity counterclaim failed

The IPEC accepted that FLOWERBX would be visually and conceptually processed as "flower box", but held that this did not make it descriptive of the challenged goods and services. The key question was whether the words would enable the average consumer immediately to identify, without further thought, a characteristic of the goods or services in question.