Trade mark infringement is becoming more and more popular. Advertising agencies fail to advise their clients of the possible legal battles they may be faced with if they make use of registered trade mark in adverts without the owner of that trade mark’s consent.
Smartphone giant, BlackBerry recently lodged a successful complaint against Liqui-fruit, for using the slogan BlackBerry, to advertise its new juice flavour. BlackBerry argued that Liqui-fruit did not obtain permission from it to make use of the word or to associate the Blackberry brand with the juice’s brand.
The Liqui-fruit advert had been launched on social media network Facebook and print adverts had been handed out in BP Express stores. The images depicted below are those that were found in the print adverts being handed out at the BP Express. The advert also used very similar slogans South Africa’s cellular network service providers.
BlackBerry argued that the adverts look and feel was very similar to their brand and that consumers may link the two brands.
ASA however disagreed with Blackberry on this point but did find that the use of the word BlackBerry by Liqui-fruit where the second “B” in the word is capitalised, infringed on BlackBerry’s trade mark. They said that the ordinary word blackberry would not have infringed on the trade mark as it would be describing the juice.
The court ordered Liqui-fruit to immediately remove the advert.
Trade mark infringement occurs when one party uses an identical or very similar trademark to that of a registered trademark. The public is misled or confused by the similarities between the trademarks and believe that these belong to the same owner or brand. Infringement may also arise from a situation where a trademark is used and brings a registered trade mark into disrepute.
The owner of a trademark may commence legal proceedings against an infringing party.
Unregistered trade marks do receive protection under the common law however the owner may have to prove that they had owned the trade mark before the infringement occurred.
Before making use of a logo or mark that is similar to another, obtain the necessary legal advice. It may save you millions.