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PS... that's my trade mark!
Primark – “Amazing fashion, Amazing prices” – now faces an amazing, hair-raising legal battle against Phil Smith Be Gorgeous Ltd (Phil Smith), a rival in the budget haircare market.
Primark recently launched its latest hair products under the name PS Love Your Hair.
Primark’s products were intended to be an addition to its PS Love Your Nails and PS Love Your Skin ranges which were first launched in 2014. According to Primark this is a play on the term postscript which apparently implies that “the range is the perfect accompaniment to any outfit.”
Phil Smith owns the UK registered trade mark P.S. Love Your Hair which is registered in class 3 for a variety of hair care products. It has been on the register since 2011 but does not appear to have been used.
Phil Smith was less than impressed to see Primark’s use of its mark for its own range of hair care products. Shortly after Primark’s launch, it appears that Phil Smith threatened legal proceedings. Primark has since applied to cancel the P.S. Love Your Hair trade mark on the basis that it has not been used in the last five years. Phil Smith’s website currently refers to a collection which is “coming soon” but this may not be soon enough to save the trade mark registration.
In any event, Phil Smith has recently ratcheted up the pressure by filing a trade mark infringement case in the High Court. Primark plans to defend on the basis that the trade mark has not been used but if that fails Phil Smith has a slam dunk “double identity” claim which will be hard for Primark to overcome.
The moral of the story is that even if you have a registered trade mark, if you do not use it, you can lose it. This means that it might not be there to protect you when you need it. Make sure you review your trade mark portfolio on a regular basis to ensure that your rights are used at least every five years.
P.S. In other words, Primark may have to give the products the chop!
Polly Jackson (Trainee Solicitor) and Rosie Burbidge (Senior Associate), Fox Williams