The injunction granted a few days by an English Court to LNDR to stop Nike’s use of LDNR in its current promotional campaign serves as a salutary reminder of the need to undertake trade mark searches prior to launching ad campaigns and the power of injunctions.
LNDR is a 2015 entrant to the fashion Industry. It sells a range of athleisure and technical clothing. It has protected LNDR as a registered trade mark for a range of goods and services including sportswear, leggings, t-shirts, sports footwear and headgear as well as related retail and online retail services. But the fact that it is a young fashion brand did not prevent it from securing an interim injunction against its multinational competitor – Nike.
Nike used the sign LDNR both as a hashtag and in conjunction with the famous tick as part of its “Nothing beats a Londoner” campaign. Despite the injunction being awarded last week it is still using the term in, at least, its YouTube campaign. Although the terms of the injunction are not known, they normally take effect immediately so Nike may well be in breach.
It is very hard to obtain an injunction under normal circumstances as money (“damages”) is usually considered by the English court to be an adequate remedy. LNDR had to convince the court that its brand would be permanently damaged by the Nike connection. It succeeded in persuading the court that the risk to its brand was greater than the cost to Nike of taking out all use of LDNR from the campaign pending the trial.
In order to secure the injunction, LNDR had to offer a substantial cross undertaking of £500,000 (the maximum amount of damages available in the IP Enterprise Court where LNDR issued the claim). This means that if Nike ultimately succeeds at trial, LNDR has a large financial liability (but not as large as it might otherwise have been). The cross undertaking can be a high stakes gamble that dissuades many fashion brands from taking action but it was making this offer which ultimately persuaded the court to grant the injunction and potentially saved LNDR’s brand.
This case is also a helpful reminder of the importance of undertaking a thorough trade mark clearance process prior to any new product launches or campaigns. It is hard to believe that this mark was not picked up as part of Nike’s clearance process, particularly as they both clearly target the London market. In any event, with the trial to come in a few months and the Nike campaign continuing for the time being, this is not the end of the story.