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Victory for Vivienne Westwood in the Courts
The Judgment in Dame Vivienne Westwood OBE v Anthony Knight, the first action to be brought in the Patents County Court under the new streamlined rules has been handed down.
The new streamlined rules have been adopted to allow the parties and the Court enhanced flexibility in preparing and progressing cases with the dual intentions of saving time and legal costs. The application of the new rules in this case had resulted in no order being made for disclosure above that which had already been made in the parties’ statements of case, no cross examination of witnesses, and no calling of expert evidence.
Vivienne Westwood had brought claims for:
- trade mark infringement,
- invalidity of various trade marks registered by Mr Knight which were identical or very similar to her prior marks,
- passing off, and
- copyright infringement.
While several of the copyright claims were not pursued at trial, Vivienne Westwood was successful in all her claims. In particular, the Court emphasised that an average consumer perceives a mark as a whole and, therefore, should not be considered to analyse the exact details of the two marks or see them side by side. There can be visual differences between two marks but provided the conceptual impact remains the same, so will the impression on the consumer.
This underlines that any infringer who takes the original mark and merely adds inconsequential details will not be able to avoid liability if the dominant aspects of the original mark are retained.
In relation to the passing off claims, the Court made reference to the conduct of the Defendant taken as a whole.
In the situation where the Defendant was using many versions of the Claimant’s marks, while some of the cases of passing off when considered individually were not as strong, the Court decided that the overall result of the Defendants systematic mimicking was a reinforcement in the minds of consumers that there was some link with Vivienne Westwood. This approach may be of great assistance to brand where an action is being brought against an individual who is effectively offering a mirror range.