A trademark is a distinguishing feature of any business entity or product that sets it apart from others. Distinguishing features may include a name, logo, slogan, design, colours and numbers either individually or a combination of any of these characters. In this case, Barak and John hope to rely on a distinctive design which is similar to those used by MP3 players and worry that manufacturers of those items might have a case of passing off. Ultimately, the question is whether or not Barak and John’ s design will lead to a misrepresentation that the Exit Poll will cause confusion as to the origins of the Exit Poll and that they intend to use that confusion to promote the Exit Poll.
In order for the manufacturers of MP3 players to substantiate a case of passing off in tort, against Barak and John they will necessarily have to prove both deception and damages or the likelihood of damages. Likewise, the manufacturers will also have to prove that the MP3 players and the Exit Poll are vastly similar products that share the same market segment.
The Exit Poll is an entirely different product than the MP3 player. The former is a product aimed at persons interested in following and predicting election results whereas the latter is primarily for entertainment purposes. It is entirely unlikely that the average consumer would confuse the two products and that as such, Barak and John can pass the Exit Poll off as an MP3 player. To this end, there can be no deception or damages since confusion of the two products is entirely out of the question.
U-boat's claim to the brand-name Exit Poll is a particularly difficult hurdle for John and Barak and they might want to use a different name. This is particularly so if U-Vote has a registered trademark. Section 10(1) of the Trade Marks Act 1994 provides as follows: "... a person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trademark in relation to goods or services which are identical with those for which it is registered. .."
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