D Green & Company (Stoke Newington) & Plastico Ltd v Regalzone Ltd [2001] EWCA Civ 639 (4 May 2001)

D Green & Company (Stoke Newington) & Plastico Ltd v Regalzone Ltd [2001] EWCA Civ 639 (4 May 2001)

Regalzone's use of 'spork' in price lists and correspondence was not likely to be taken by the average recipient as indicating a connection with Plastico; the use was descriptive, not distinctive, and thus not infringing under either the 1938 or 1994 Acts. The claim in passing-off also fails.

Citation
[2001] EWCA Civ 639
Parties
Claimant: D Green & Company (Stoke Newington) Limited; Claimant: Plastico Limited; Appellant/respondent: Regalzone Limited
Jurisdiction
England and Wales
Judgment Date
04 May 2001
Procedural Posture
Appeal / Court of Appeal (civil Division) Judgment
Outcome
Appeal allowed
Legal Topics
Trade Mark Infringement, Passing Off, Descriptive Use, Distinctive Character, Transitional Provisions
Intellectual Property Trade Mark Infringement Passing Off Descriptive Use Distinctive Character Transitional Provisions

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Parties

D Green & Company (Stoke Newington) Limited

Claimant

Plastico Limited

Claimant

Regalzone Limited

Appellant/respondent

Procedural Posture

Appeal / Court of Appeal (civil Division) Judgment

Legal Issues

  1. 1 Whether use of the word 'spork' by Regalzone constituted trade mark infringement under the Trade Marks Act 1938 and 1994
  2. 2 Whether the use was likely to be taken as trade mark use by an average recipient
  3. 3 Whether the use was descriptive or distinctive

Ratio Decidendi

Regalzone's use of 'spork' in price lists and correspondence was not likely to be taken by the average recipient as indicating a connection with Plastico; the use was descriptive, not distinctive, and thus not infringing under either the 1938 or 1994 Acts. The claim in passing-off also fails.

Court Disposition

Appeal allowed

Orders

  • Claim for trade mark infringement dismissed
  • Claim for passing-off dismissed