IP Snapshot - November 2006

The High Court handed down its decision in this high-profile trade mark infringement case, finding that ‘look-alike’ perfume packaging infringed L’Oreal’s trade mark rights. The Court held that a proprietor can establish infringement under section 10 (3) of the Trade Marks Act 1994 where similar packaging takes unfair advantage of the reputation of an existing brand, without the need to prove a likelihood that consumers would confuse the products. The Court emphasised that the purpose of a trade mark in modern commerce is not just to authenticate the origin of a product, it also serves to protect a valuable communication tool. In this respect, signs and marks on products can be similar for the purposes of dilution if they invoke an association with another brand, even if the possibility of confusion is low. However, the Claimant’s case in passing off and under s.10(2) failed since no likelihood of confusion had been established.