It is often said that after a while everything starts to look the same. We're told it's a certified side effect of one's advancing years. Or perhaps just the result of a short attention-span 'snapchat' obsessed society - one that hasn't the time, or want, to stop and look properly.
Given our penchant for cursory glances over concerted scrutiny as we go about our daily routine (except, that is, where we are paid to pay attention in whatever profession we choose, or that chooses us), such a perception of likeness everywhere we look perhaps isn't a huge surprise. In the commercial world, however, such confusion creates problems.
The curiously common phenomenon of cloning a competitors branding, logo or product design is often sparked where someone sets a stylish sector standard and others duly follow. Lines tend to get blurred. What was once the 'ripple effect' is now better understood as the 'apple effect'. Not just confined to the electronics industry, everyone seems to be at it. See the swathes of smiling showboating sprinters all sporting a suspiciously similar swagger in the wake of a certain Usain Bolt.
If you can't beat them, join them, as they say.
A recent case in point, and in court, was that of confusing car rental company logos. Last month, the High Court found in favour of Enterprise in its action against Europcar for passing off in relation to the use of a similar 'e' logo by both parties. The car rental companies were at odds over use of their respective logos, with Enterprise claiming confusion over their competitors' use of a closely crafted design that in its eyes amounted to infringement of Enterprise's registered trade mark rights.
The Enterprise versus Europcar case is just the latest in a long list of trade mark disputes between closely branded competitors consistently popping up in court. Whether you subscribe to the slightly conspiratorial slant on an evolutionary process that sees companies craving and copying 'cool' and cashing in on easily confused customers, or you are more forgiving of innocent or ignorant design decisions, it certainly offers pause for thought where launching a brand is in contemplation.
Checking competitors' registered trade marks and incorporating an awareness of distinctive design elements already on market are certainly shrewd starting points. Seeking legal advice where you are unsure of the landscape in front of you might also be just as prudent. And appreciating that even after all of that it can still sometimes go wrong – means you have some sense of the occupational hazards of branding.
Back to the case. Enterprise had registered their logo as a Community Trade Mark for over a year prior to Europcar's adoption of a similarly styled 'e' logo. Enterprise responded by commencing proceedings against its car rental competitor, claiming confusion with its own logo, detriment to its distinctive character, and that Europcar were taking unfair advantage of it, and should be found guilty of passing off.
The court cited the similarity of the marks, evidence of genuine confusion, similarity in services and the particular distinctiveness of the green and white Enterprise logo as sufficient surrounding factors to find against Europcar on the confusion point and for passing off.
What's clear is that in a world where everyone wants to be different, a remarkable number of companies seem to want to go out of their way to be the same. If you can't beat them join them, you say? How about too much familiarity breeds contempt as a more apt assessment of this one.
MacRoberts LLP advises clients on all aspects of the trade mark process.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
