The Thomson-owned LAWTEL subscription-only site offers this today: Mars UK Ltd v Burgess Group plc, another decision of Mr Justice Lloyd last Monday (judgment not yet available). Mars produced the WHISKAS range of cat food, for which it owned Community and UK trade marks. The product in issue in this case was a dried cat food in resealable, mainly purple bags that bore the word WHISKAS on a cat mask design. Burgess recently launched its own SUPA CAT dried cat food, in maroon bags bearing the word BURGESS. Mars' product were sold in supermarkets, while those of Burgess were sold only in pet shops. Mars alleged that Burgess was passing off its product as being associated with Mars and that its product infringed its trade marks. Burgess disagreed, mainting that neither the get up as a whole nor the colour purple represented to the public that its product was closely associated with Mars.
Lloyd J refused to grant interim injunctive relief. Fatal to Mars' case was the fact that, in the absence of evidence of confusion at this stage, Mars had not shown a seriously arguable case that Burgess' packaging would be taken by shoppers as associated with Mars. Basically, WHISKAS was sold under the name WHISKAS, while Burgess' product was in a different coloured bag and bore the names BURGESS and SUPA CAT. Both parties' products were so large that differences would not escape a shopper's notice and no reasonably alert customer with reasonable eyesight would associate the one with the other. While there were some superficial similarities, the differences -- especially in the colour itself, its amount and layout, were more significant.
The IPKat notes that the relevant consumer, in the case of cat food, is the person who buys it and not the cat who eats it. More to the point, this case raises an important point concerning the comparison of colour. There will be many for whom purple and maroon are quite different colours, but many also -- including those who suffer from varying degrees of colour-blindness, who cannot distinguish them at all or at least find them quite similar.
Compare purple and maroon here
Colour-blindness here; Ishihara test for colour-blindness here
Burgess SUPA CAT is not yet available online, but here's SUPA RAT
Other purple trade marks here, here and here
Lloyd J refused to grant interim injunctive relief. Fatal to Mars' case was the fact that, in the absence of evidence of confusion at this stage, Mars had not shown a seriously arguable case that Burgess' packaging would be taken by shoppers as associated with Mars. Basically, WHISKAS was sold under the name WHISKAS, while Burgess' product was in a different coloured bag and bore the names BURGESS and SUPA CAT. Both parties' products were so large that differences would not escape a shopper's notice and no reasonably alert customer with reasonable eyesight would associate the one with the other. While there were some superficial similarities, the differences -- especially in the colour itself, its amount and layout, were more significant.
The IPKat notes that the relevant consumer, in the case of cat food, is the person who buys it and not the cat who eats it. More to the point, this case raises an important point concerning the comparison of colour. There will be many for whom purple and maroon are quite different colours, but many also -- including those who suffer from varying degrees of colour-blindness, who cannot distinguish them at all or at least find them quite similar.
Compare purple and maroon here
Colour-blindness here; Ishihara test for colour-blindness here
Burgess SUPA CAT is not yet available online, but here's SUPA RAT
Other purple trade marks here, here and here
BUT COULD THE DISCERNING CAT TELL THEM APART?
![BUT COULD THE DISCERNING CAT TELL THEM APART?]()
Reviewed by Jeremy
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Tuesday, July 27, 2004
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