Not everyone is particularly observant or attentive and the names of businesses and other organisations do not have to be identical in order to sow confusion in the public mind. The High Court made that point in upholding a trade mark infringement claim brought by the British Amateur Gymnastics Association (BAGA).
The BAGA, a not-for-profit company, can trace its roots to the 19th century and is the UK’s sole national governing body (NGB) for the sport of gymnastics. It is generally known simply as ‘British Gymnastics’ and that moniker is protected by trade marks. It launched proceedings against two linked companies which provide gymnastics-related goods and services under the name ‘UK Gymnastics’.
Ruling on the matter, the Court found that the visual and aural similarity between the phrases ‘British Gymnastics’ and ‘UK Gymnastics’ was low. The conceptual similarity between them was, however, strong. The ‘UK’ and ‘Britain’ were confusingly similar geographical concepts to many people and average consumers, particularly children, were likely to have difficulty distinguishing between them. Overall, the Court found that the phrases had a medium degree of similarity.
The high level of conceptual similarity gave rise to a likelihood of confusion amongst those paying a lesser degree of attention, including child gymnasts, their parents and spectators. There was a likelihood that those who saw the phrase ‘UK Gymnastics’ would mistakenly take it as a reference to the sport’s NGB in the UK, of which there is only one.
The use of the phrase ‘UK Gymnastics’ was detrimental to the distinctive character and repute of the BAGA’s trade marks. It was also more likely than not that such use was intended to, and did, take unfair advantage of the trade marks and that the purpose of doing so was to obtain an economic advantage.
In also ruling that the use of the phrase amounted to passing off, the Court found that it was likely to damage the BAGA’s goodwill. It amounted to a misrepresentation which was likely to lead average consumers to wrongly assume an economic or other link between the BAGA and UK Gymnastics.
The Court’s ruling opened the way for the BAGA to pursue its claim for an injunction against the UK Gymnastics companies and their sole director, restraining any further acts of passing off or trade mark infringement. The BAGA was also seeking up to £100,000 in damages.