Overview of United Kingdom Trade Mark, Design and Copyright Cases 2022

Abstract

A number of interesting cases involving wide-ranging issues in the intellectual property areas were decided in the UK in 2022. The latest in the saga between Nestle and Cadbury was handed down in Société des Produits Nestlé S.A. v. Cadbury UK Limited. This case concerned the registrability of the colour purple. Also on registrability, we had the decision in Husqvarna Aktiebolag v. UKIPO. This involved the registrability of a 3D trade mark, and the uncertainties surrounding this continue to linger. Moreover, the UKIPO Tribunal decision in Industria De Diseno Textil v. Amber Kotrri was straightforward enough from a factual point of view but garnered a host of publicity due to the PR efforts of one of the parties. It concerned an opposition based on likelihood of confusion and reputation grounds, but the result may be surprising to some readers. ABP Technology Ltd v. Voyetra Turtle Beach, Inc. & Turtle Beach Europe Ltd was particularly interesting from a procedural point of view, and parties are reminded that their litigation strategy can be put to scrutiny. The importance of evidence, and in particular, specific and tailored evidence to a case, was made clear in DC Comics (Partnership) v. Unilever Global IP Limited. Also on evidence, Urbanbubble Ltd & Ors v. Urban Evolution Property Management Ltd (“UEPM”) & Ors reminds readers that evidence of confusion will not always lead to a finding of infringement or passing off because all the factors will need to be considered. Nonetheless, Match Group v. Muzmatch confirms that the absence of actual confusion is also not decisive in the likelihood of confusion assessment. Goodwill, especially in the case of a music band which then later splits, was considered in Alan Williams Entertainments Ltd and ANOR v. Clarke and Ors. This was a passing off case, with a claim for bad faith in a trade mark application. Though the case is factually complex, the resulting decision is a good reminder to all in the music and performing arts industries. In a similar vein, in Shazam Productions Ltd v. Only Fools the Dining Experience Ltd, the courts considered whether copyright and actionable goodwill could subsist in relation to a television series.