“As part of the ‘Moving Your Way’ positioning, a new logo has been designed to symbolize mobility and act as a quality stamp on all Europcar sub-brands and offers.”
“… Enterprise ®, National ® and Alamo ® have formed an industry-first network to provide their customers with superior service and rewards worldwide. Now, if you travel to a destination where you can’t rent with your preferred brand, you have the option to rent from the Drive Alliance SM network. What’s more, Enterprise and National loyalty club members can earn toward free rental days and elite status with qualifying rentals from either member. Through the Drive Alliance network, Enterprise Plus ® members can now earn points and elite status at participating Enterprise locations in Europe as well as throughout North America…”
“Mr Hobbs QC rightly said that [Interflora (CA I)] was intended to send the general message that evidence from consumers in this kind of case (i.e. trade mark infringement involving ordinary consumer goods or services) should only be admitted if it is of real value; and even then only if the value justifies the cost; and that judges should be robust gatekeepers in that respect.”
“A Community trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: … (b) any sign where, because of its identity with, or similarity to, the Community trade mark and the identity or similarity of the goods or services covered by the Community trade mark and the sign, there exists a likelihood of confusion on the part of the public; the likelihood of confusion includes the likelihood of association between the sign and the Community trade mark; (c) any sign which is identical with, or similar to, the Community trade mark in relation to goods or services which are not similar to those for which the Community trade mark is registered, where the latter has a reputation in the Member State and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the Community trade mark.”
“(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors; (b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question; (c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details; (d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements; (e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components; (f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark; (g) a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa; (h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it; (i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient; (j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense; and (k) if the association between the marks causes the public to wrongly believe that the respective goods [or services] come from the same or economically-linked undertakings, there is a likelihood of confusion.”
“24. The public amongst which the earlier trade mark must have acquired a reputation is that concerned by that trade mark, that is to say, depending on the product or service marketed, either the public at large or a more specialised public, for example traders in a specific sector. 25. It cannot be inferred from either the letter or the spirit of Article 5(2) of the Directive that the trade mark must be known by a given percentage of the public so defined. 26. The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark. 27. In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.”
“42. Admittedly, Regulation No 207/2009 and the Court’s case-law do not require evidence to be adduced of actual detriment, but also admit the serious risk of such detriment, allowing the use of logical deductions. 43. None the less, such deductions must not be the result of mere suppositions but, as the General Court itself noted at paragraph 52 of the judgment under appeal, in citing an earlier judgment of the General Court, must be founded on ‘an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case’.”
“As regards the concept of ‘taking unfair advantage of the distinctive character or the repute of the trade mark’, also referred to as ‘parasitism’ or ‘free-riding’, that concept relates not to the detriment caused to the mark but to the advantage taken by the third party as a result of the use of the identical or similar sign. It covers, in particular, cases where, by reason of a transfer of the image of the mark or of the characteristics which it projects to the goods identified by the identical or similar sign, there is clear exploitation on the coat-tails of the mark with a reputation.”
“44. In order to determine whether the use of a sign takes unfair advantage of the distinctive character or the repute of the mark, it is necessary to undertake a global assessment, taking into account all factors relevant to the circumstances of the case, which include the strength of the mark’s reputation and the degree of distinctive character of the mark, the degree of similarity between the marks at issue and the nature and degree of proximity of the goods or services concerned. As regards the strength of the reputation and the degree of distinctive character of the mark, the Court has already held that, the stronger that mark’s distinctive character and reputation are, the easier it will be to accept that detriment has been caused to it. It is also clear from the case-law that, the more immediately and strongly the mark is brought to mind by the sign, the greater the likelihood that the current or future use of the sign is taking, or will take, unfair advantage of the distinctive character or the repute of the mark or is, or will be, detrimental to them (see, to that effect, Intel Corporation, paragraphs 67 to 69). 45. In addition, it must be stated that any such global assessment may also take into account, where necessary, the fact that there is a likelihood of dilution or tarnishment of the mark. … 49. In that regard, where a third party attempts, through the use of a sign similar to a mark with a reputation, to ride on the coattails of that mark in order to benefit from its power of attraction, its reputation and its prestige, and to exploit, without paying any financial compensation and without being required to make efforts of his own in that regard, the marketing effort expended by the proprietor of that mark in order to create and maintain the image of that mark, the advantage resulting from such use must be considered to be an advantage that has been unfairly taken of the distinctive character or the repute of that mark.”
“129. ... In deciding a question of infringement of a trade mark, and determining whether a sign has affected or is liable to affect one of the functions of the mark in a claim under Article 5(1)(a) of the Directive (or Article 9(1)(a) of the Regulation), whether there is a likelihood of confusion or association under Article 5(1)(b) (or Article 9(1)(b)), or whether there is a link between the mark and the sign under Article 5(2) (or Article 9(1)(c)), the national court is required to make a qualitative assessment. It follows that it must make that assessment from the perspective of the average consumer and in accordance with the guidance given by the Court of Justice. Of course the court must ultimately give a binary answer to the question before it, that is to say, in the case of Article 5(1)(b) of the Directive, whether or not, as a result of the accused use, there exists a likelihood of confusion on the part of the public. But in light of the foregoing discussion we do not accept that a finding of infringement is precluded by a finding that many consumers, of whom the average consumer is representative, would not be confused. To the contrary, if, having regard to the perceptions and expectations of the average consumer, the court concludes that a significant proportion of the relevant public is likely to be confused such as to warrant the intervention of the court then we believe it may properly find infringement. 130. In the circumstances of this case we are, of course, concerned with a claim under Article 5(1)(a) (and Article 9(1)(a)) in the context of internet advertising and the question to be answered was whether the advertisements in issue did not enable reasonably well-informed and observant internet users, or enabled them only with difficulty, to ascertain whether the goods and services so advertised originated from Interflora or an undertaking economically linked to Interflora or, on the contrary, originated from M & S, a third party. In answering this question we consider the judge was entitled to have regard to the effect of the advertisements upon a significant section of the relevant class of consumers, and he was not barred from finding infringement by a determination that the majority of consumers were not confused.”
“In order to establish that a trade mark has acquired distinctive character following the use that had been made of it within the meaning of Article 3(3) of Directive 200S/951EC, is it sufficient for the applicant for registration to prove that at the relevant date a significant proportion of the relevant class of persons recognise the mark and associate it with the applicant's goods in the sense that, if they were to consider who marketed goods bearing that mark, they would identify the applicant; or must the applicant prove that a significant proportion of the relevant class of persons rely upon the mark (as opposed to any other trademarks which may also be present) as indicating the origin of the goods?”
“43. It should also be stated that Union law does not preclude the competent authority, where it has particular difficulty in assessing the distinctive character acquired though use of the mark in respect of which registration or a declaration of invalidity is sought, from having recourse, under the conditions laid down by its own national law, to an opinion poll as guidance for its judgment (see, to that effect, Windsurfing Chiemsee EU:C:1999:230, paragraph 53 and the case-law cited). If the competent authority finds it necessary to resort to such a survey, it must determine the percentage of consumers that would be sufficiently significant (see, by analogy,Case C-478/07 Budĕjovický Budvar EU:C:2009:521, paragraph 89). 44. However, the circumstances in which the requirement concerning the acquisition of a distinctive character through use, under Article 3(3) of Directive 2008/95, may be regarded as satisfied cannot be shown to exist solely by reference to general, abstract data such as predetermined percentages (Windsurfing Chiemsee EU:C:1999:230, paragraph 52, and Philips EU:C:2002:377, paragraph 62). … 48. It follows from the foregoing that it is not possible to state in general terms, for example by referring to predetermined percentages relating to the degree of recognition attained by the mark within the relevant section of the public, when a mark has acquired a distinctive character through use and that, even with regard to contourless colour marks, such as the mark at issue in the main proceedings, and even if a consumer survey may be one of the factors to be taken into account when assessing whether such a mark has acquired a distinctive character through use, the results of a consumer survey cannot be the only decisive criterion to support the conclusion that a distinctive character has been acquired through use.”
“2. Article 9(1)(b) and (c) of Regulation 207/2009 must be interpreted as meaning that where a Community trade mark is not registered in colour, but the proprietor has used it extensively in a particular colour or combination of colours with the result that it has become associated in the mind of a significant portion of the public with that colour or combination of colours, the colour or colours which a third party uses in order to represent a sign alleged to infringe that trade mark are relevant in the global assessment of the likelihood of confusion or unfair advantage under that provision.”
“3. Article 9(1)(b) and (c) of Regulation 207/2009 must be interpreted as meaning that the fact that the third party making use of a sign which allegedly infringes the registered trade mark is itself associated, in the mind of a significant portion of the public, with the colour or particular combination of colours which it uses for the representation of that sign is relevant to the global assessment of the likelihood of confusion and unfair advantage for the purposes of that provision.” the global assessment of the likelihood of confusion and unfair advantage for the purposes of that provision.”
“On that it seems to me that the actual user in this country in the way I have mentioned can be supplemented by the reputation of the plaintiff and by the activities of the plaintiff outside England. The number of persons who, going down Jermyn Street and seeing the defendants operating under the name ‘Valentino’, will include English people who have been abroad and may have seen one or more of the Valentino boutiques which are abroad, and they will include American and European visitors to this country who may also have seen Valentino boutiques abroad.”
“… no ordinary member of the public, whether he be indigenous or a foreign tourist, could consider himself a customer in this country for the plaintiffs’ beer.”
“If the question were whether, by sales of their beer to the general public, the plaintiffs had acquired a goodwill in this country, I would not think it right to exclude tourists, or foreign nationals working here, from the general public.”
“I accept that this is so in relation to customers who are customers in the United States and then became United Kingdom residents without continuing to make purchases from Jian. But subject to that, I do not consider that it is right to disregard as customers of Jian within the United Kingdom who are relevant to the ascertainment whether Jian has goodwill within the United Kingdom, all those who bought Jian's product for reasons which have their origins outside the United Kingdom, such as a recommendation from an American friend. Although, as will appear later, I accept that goodwill is local as between jurisdictions, I do not accept that it follows from this that a business should be regarded as divisible in the same way and have apportioned for the purposes of determining where goodwill is situate, customers according to the historic reason for which they have become customers.”
“… the evidence that I have here from suppliers to the defendants does not really help me as to what the position is with people who may not know Aspreys very well but who have come to London and see the name Asprey on the defendant's shop. If you have an international trade, you must take your international customers as you find them. Some will speak English well, others will not speak English well. Some will know London well, others not.” 168.Similarly, Peter Gibson LJ said at [35]: “The judge properly recognised that many would not be confused. The personal contacts, about whom William Asprey gave evidence, would not, nor would suppliers. But even the wealthy—and wealth is likely to be the chief common characteristic of the customers of both the claimant and the first defendant—may muddle the two companies, as some of the instances of confusion show, particularly when the customers include many foreigners, again as those instances illustrated. One does not have to postulate other than a ‘reasonably well informed and reasonably observant and circumspect’ customer (to use Chadwick L.J.'s phrase in BACH and BACH FLOWER REMEDIES Trade Marks [2000] R.P.C. 513 at p. 535) as the typical customer of both the first defendant and the claimant to recognise that there is still a likelihood of confusion and deception, as the judge found, of the public including but not limited to customers who happen to pass by in Mount Street.”
“38. … the Court has already held that, for the purpose of an overall assessment of the likelihood of confusion, it must be borne in mind inter alia that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (Lloyd Schuhfabrik Meyer, paragraph 26). 39. Therefore, the Court of First Instance was fully entitled to hold, in paragraph 59 of the judgment under appeal, that, for the purposes of assessing, as provided for in Article 8(1)(b) of Regulation No 40/94, whether there is any likelihood of confusion between marks relating to motor vehicles, account must be taken of the fact that, in view of the nature of the goods concerned and in particular their price and their highly technological character, the average consumer displays a particularly high level of attention at the time of purchase of such goods. 40. Where it is established in fact that the objective characteristics of a given product mean that the average consumer purchases it only after a particularly careful examination, it is important in law to take into account that such a fact may reduce the likelihood of confusion between marks relating to such goods at the crucial moment when the choice between those goods and marks is made. 41. As to the fact that the relevant public is also likely to perceive such goods and the marks relating to them in circumstances unconnected with any act of purchase and to display, where appropriate, a lower level of attention on such occasions, the Court of First Instance was also fully entitled to observe, again in paragraph 59 of the judgment under appeal, that the existence of such a possibility does not prevent the taking into account of the particularly high level of attention exhibited by the average consumer when he prepares and makes his choice between different goods in the category concerned. 42. First, it is clear that, whatever the goods and marks at issue, there will always be situations in which the public faced with them will grant them only a low degree of attention. However, to require that account be taken of the lowest degree of attention which the public is capable of displaying when faced with a product and a mark would amount to denying all relevance, for the purpose of an assessment of the likelihood of confusion, to the criterion relating to the variable level of attention according to the category of goods, noted in paragraph 38 of this judgment. 43. Second, as observed by OHIM, the authority called upon to assess whether there is a likelihood of confusion cannot reasonably be required to establish, for each category of goods, the consumer’s average amount of attention on the basis of the level of attention which he is capable of displaying in different situations.”
“It is true that the level of attention of the average consumer is likely to vary according to the category of goods or services in question (see Top iX, paragraph 45 and the case-law referred to). However, in the present case, there is no basis for the inference that the degree of attention of the relevant public is particularly high when a car rental supplier is being chosen. There are no factors present which encourage a high degree of attention, such as a high price or the technological nature of the service. Consequently, the applicant’s argument that the relevant public is particularly attentive because of the nature of the services covered in the present case must be rejected.”