Energy drink loses its fizz

How can copyright assist brand owners in their enforcement efforts? A recent decision of the Intellectual Property Enterprise Court goes to the heart of all this, as Katfriend Hugo Cox (Hamlins LLP) explains.

Here's what Hugo writes:

Energy drink loses its fizz 

by Hugo Cox

A recent judgment of the Intellectual Property Enterprise Court, ATB Sales v Rich Energy, illustrates the potential significance of copyright law in the protection of brands.

Whyte Bikes successfully sued Rich Energy drinks for infringing the copyright in their logo. The claimant’s and defendant’s logos are here:

The question for the court to decide was whether the defendants had copied the claimant’s logo or arrived at their logo independently. 

Since there was no direct evidence copying had taken place, the judge followed the leading authority Designers Guild, which stated that if the claimant demonstrates sufficient similarity and the defendant had prior access to the claimant’s work, the burden of proof passes to the defendant to satisfy the judge that the similarities did not result from copying. 

In this case, the judge decided there was sufficient similarity between the logos and access on the internet had been likely. The possibility of unconscious copying was excluded, so ultimately the question for the judge to decide was whether the defendants were lying. It was the significant amount of misleading evidence provided which convinced the judge on this point. 

The judge speculated inconclusively on the defendants’ motive: perhaps they thought the claimant’s logo was too simple to attract copyright protection, or perhaps they thought trade mark clearance was all that mattered? 

In the end, this copyright judgment does not hinge on theoretical questions of copyright law, but on a damning assessment of character.