1 "Waiter, there's a dragonfly in my tea ..."

The IPKat's most recent visit to the Butterworths All England Direct subscription-only service has thrown up another decision of Mr Justice Blackburne, Wistbray Ltd v Creative Nature Ltd, yesterday in the Chancery Division.

Wistbray owned a UK registration for the word mark DRAGONFLY as well as a Community registration for the word DRAGONFLY combined with a dragonfly in silhouette, both for teas in Class 30. The company used those marks on tea since September 2000, enjoying an annual turnover of about £1m; it sold tea to wholesalers and retailers and could be bought in supermarkets and sandwich bars. Creative, a UK company, traded in incense, arts and crafts and (to a small extent) tea. It used a sign comprising a pictorial depiction of a dragonfly in flight, with the words CREATIVE NATURE.

Wistbray claimed that Creative's use of its sign infringed both its marks, suing for infringement under s.10(2)(b) of the Trade Marks Act 1994 (similar marks, same goods + likelihood of confusion) and seeking summary judgment.

Blackburne J allowed the application and granted an injunction. In this case, he said, seeing as Creative's sign was similar to Wistbray's trade marks, as were their respective goods, there was at least a likelihood of confusion. Wistbray's use of its marks was well established and its marks, both as an expression and as a pictorial symbol for use in teas, were distinctive and memorable. The fact that Creative's teas were largely medicinal and were sold at specialised outlets did not suffice to refute the conclusion that there was a likelihood of confusion.

The IPKat notes that Wistbray was represented by razor-sharp intellectual property specialist Michael Edenborough while Creative did not appear to use a lawyer at all. Without having seen the evidence, he can't help wondering if the result would have gone the other way if Wistbray lacked professional representation and Creative had Michael (or for that matter any other competent IP lawyer) to press its case. Could more have been made of the facts that (i) the products were sold in different types of outlet and that (ii) consumers usually take a good deal of care when buying health products? Till the full text appears, we may never know.

2 "The Ideas Companion"

Even though the cover sports an illustration of a light-bulb, The Ideas Companion is a fun book for anyone who enjoys IP trivia (growls Merpel, there's no such thing as IP trivia; if it's IP, then it's automatically important). Subtitled "clever copyrights, tremendous trademarks & peerless patents", it was published earlier this year by Chrysalis' Robson Books division in partnership with CPA. At just £9.99, its 156 pages are jam-packed with glorious facts and figures, lists, lyrics, anecdotes, quotations, definitions, cartoons and biographies. Topics covered include
* the frowny emoticon;

* the original words of the song "Happy Birthday to You";

* Uncle Septimus invents the aquavelocipede;

* a list of Virgin brands;

* Salvador Dali: "Ideas are meant to be copied. I prefer that they are stolen so that I don't have to use them myself".
Buy this book and you can annoy your friends and relatives almost endlessly with it!

3 Nice work if you can get it

If anyone is looking for a Professorship in Intellectual Property Law, there's one going here in Cape Town, South Africa. Duties are as follows:
"Conduct world-class quality research in IP Law and define a strategic direction for the subject. Teach IP law at LLB and LLM level and direct its teaching in other Faculties, while fostering an interdisciplinary approach to both the teaching and research in the subject. Assist in the development of policies within the University and nationally - including policies regarding indigenous knowledge. Develop capacity in IP law within the University, South Africa and the Southern African region".
DRAGONFLIES, CHRYSALIS DRAGONFLIES, CHRYSALIS Reviewed by Jeremy on Friday, August 12, 2005 Rating: 5

1 comment:

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