Thomson Holidays Ltd. v Norwegian Cruise Line Ltd. [2002] EWCA Civ 1828 (17 December 2002)

Thomson Holidays Ltd. v Norwegian Cruise Line Ltd. [2002] EWCA Civ 1828 (17 December 2002)

The correct approach to partial revocation is to limit the specification to reflect actual use as perceived by the average consumer; 'package holidays' is a fair description of Thomson's use. Norwegian's use of 'FREESTYLE' for cruise holidays infringed Thomson's partially revoked trade marks under both sections 10(1) and 10(2) of the Trade Marks Act 1994, as there was a likelihood of confusion.

Citation
[2002] EWCA Civ 1828
Parties
Appellant/claimant: Thomson Holidays Limited; Respondent/defendant: Norwegian Cruise Line Limited
Jurisdiction
England and Wales
Judgment Date
17 December 2002
Procedural Posture
Appeal From Chancery Division (trade Mark Infringement) / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Trade Mark Infringement, Partial Revocation for Non Use, Specification Amendment, Likelihood of Confusion, Interpretation of Trade Marks Act 1994
Intellectual Property Commercial Law Trade Mark Infringement Partial Revocation for Non Use Specification Amendment Likelihood of Confusion Interpretation of Trade Marks Act 1994

Case Brief

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Parties

Thomson Holidays Limited

Appellant/claimant

Norwegian Cruise Line Limited

Respondent/defendant

Procedural Posture

Appeal From Chancery Division (trade Mark Infringement) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether Thomson's trade marks should be partially revoked for non-use under section 46 of the Trade Marks Act 1994
  2. 2 How the specification of services should be fairly limited to reflect actual use
  3. 3 Whether Norwegian's use of 'FREESTYLE' infringed Thomson's trade marks under sections 10(1) and 10(2) of the Trade Marks Act 1994

Ratio Decidendi

The correct approach to partial revocation is to limit the specification to reflect actual use as perceived by the average consumer; 'package holidays' is a fair description of Thomson's use. Norwegian's use of 'FREESTYLE' for cruise holidays infringed Thomson's partially revoked trade marks under both sections 10(1) and 10(2) of the Trade Marks Act 1994, as there was a likelihood of confusion.

Court Disposition

Appeal allowed

Orders

  • Set aside the order of the Chancery Division judge
  • Declare infringement of Thomson's partially revoked trade marks