Key Facts
- •TVIS Limited (Claimant) sued Howserv Services Limited, Howserv Limited, and Ticorp Limited (Defendants) for trade mark infringement and passing off.
- •Claimant uses the registered trade mark "VETSURE" for pet insurance services.
- •Defendants use the trade mark "PETSURE" for pet insurance services.
- •The case involved assessing the validity of the PETSURE trade mark and whether it infringed VETSURE.
- •The trial involved significant disclosure issues and a large volume of evidence.
- •Both marks are descriptive and incorporate the word "sure", commonly used in insurance.
- •The market for pet insurance is competitive and includes numerous providers with descriptive or allusive names.
Legal Principles
Likelihood of confusion must be assessed globally, considering all relevant factors and the perspective of the average consumer.
Match Group, LLC & Ors. v Muzmatch Ltd & Anor [2023] EWCA Civ 454
Two main types of confusion: direct (mistaking one mark for another) and indirect (believing goods come from the same or linked undertakings).
Sazerac Brands LLC v Liverpool Gin Distillery Ltd [2021] EWCA Civ 1207
For trade mark invalidity under Section 5(3), the later mark's use must take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier mark.
Match Group, LLC & Ors. v Muzmatch Ltd & Anor [2023] EWCA Civ 454
Elements of passing off: goodwill, misrepresentation, damage.
Reckitt & Colman [1990] 1 WLR 491 (HL)
Outcomes
Claim for revocation of the PETSURE mark failed.
No likelihood of confusion between PETSURE and VETSURE; both marks are descriptive and use common elements.
Claim for infringement under sections 10(2) and 10(3) failed.
No likelihood of confusion; evidence of actual confusion was largely due to administrative errors, not genuine consumer confusion.
Claim for passing off failed.
No evidence of misrepresentation or likelihood of confusion causing deception.