Wednesday was a bumper day for Court of Appeal IP decisions. The IPKat will be bringing you the highlights over the next few days. On the trade mark side of things, the court decided Inter Lotto v Camelot, an appeal from Laddie J’s decision of last month. Inter Lotto had chosen the name HOTPICK in July 2001 and started using it in August of that year. By 17 October 2001 it had signed up 424 pubs for its operation although the game didn’t start until 28 November. Meanwhile, Camelot applied to register HOTPICKS as a trade mark on 17 October 2001, but Camelot’s game was not launched until April 2002.
Inter Lotto sued Camelot for passing off. Camelot responded that Inter Lotto could only base its passing off claim on goodwill that had accrued to it before the date of Camelot’s application for trade mark registration (which wasn’t much because Inter Lotto's game was not properly launched until the month after the application). Inter Lotto on the other hand claimed that, under passing off principles, its goodwill fell to be determined at the date Camelot launched its HOTPICKS game in April 2000. By that time, Inter Lotto’s game had been operating a lot longer and had had more time to build up a reputation. The court had to decide between applying passing off principles as Inter Lotto wanted or Camelot’s registered trade mark-inspired argument. Affirming the decision of the trial judge, the Court of Appeal accepted Inter Lotto’s submission and held that Camelot’s launch date was the relevant date. Passing off lives on in this context, even where there are registered trade marks involved, because section 2(2) of the Trade Marks Act 1994 states that “nothing in this Act affects the law relating to passing off.” However, this won’t be the case where the law has been expressly changed so that it is inconsistent with passing off principles, as is the case for example with loss of rights by acquiescence under s.48 of the TMA.
Learn about Camelot here, here and here
A song to sing at (k)night here
Inter Lotto sued Camelot for passing off. Camelot responded that Inter Lotto could only base its passing off claim on goodwill that had accrued to it before the date of Camelot’s application for trade mark registration (which wasn’t much because Inter Lotto's game was not properly launched until the month after the application). Inter Lotto on the other hand claimed that, under passing off principles, its goodwill fell to be determined at the date Camelot launched its HOTPICKS game in April 2000. By that time, Inter Lotto’s game had been operating a lot longer and had had more time to build up a reputation. The court had to decide between applying passing off principles as Inter Lotto wanted or Camelot’s registered trade mark-inspired argument. Affirming the decision of the trial judge, the Court of Appeal accepted Inter Lotto’s submission and held that Camelot’s launch date was the relevant date. Passing off lives on in this context, even where there are registered trade marks involved, because section 2(2) of the Trade Marks Act 1994 states that “nothing in this Act affects the law relating to passing off.” However, this won’t be the case where the law has been expressly changed so that it is inconsistent with passing off principles, as is the case for example with loss of rights by acquiescence under s.48 of the TMA.
Learn about Camelot here, here and here
A song to sing at (k)night here
COURT OF APPEAL TAKES ITS PICK
![<strong>COURT OF APPEAL TAKES ITS PICK</strong>]()
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Thursday, July 31, 2003
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