The Wella Corporation v Alberto-Culver Company [2011] EWHC 3558 (Ch) (01 December 2011)

The Wella Corporation v Alberto-Culver Company [2011] EWHC 3558 (Ch) (01 December 2011)

The hearing officer was entitled to find, on the evidence, that 'SHAPER' lacked all distinctive character at the relevant date and that 'FUNKY' added nothing distinctive; neither mark would be seen as indicating origin, so there is no likelihood of confusion under section 5(2)(b).

Citation
[2011] EWHC 3558 (Ch)
Parties
Applicant/claimant: The Wella Corporation; Respondent/defendant: Alberto-Culver Company
Jurisdiction
England and Wales
Judgment Date
01 December 2011
Procedural Posture
Trade Mark Appeal / Appeal From UKIPO Decision
Outcome
Appeal dismissed
Legal Topics
Trade Marks, Distinctiveness, Likelihood of Confusion, Invalidation Proceedings
Intellectual Property Trade Marks Distinctiveness Likelihood of Confusion Invalidation Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The Wella Corporation

Applicant/claimant

Alberto-Culver Company

Respondent/defendant

Procedural Posture

Trade Mark Appeal / Appeal From UKIPO Decision

Legal Issues

  1. 1 Whether the mark 'SHAPER' lacked all distinctive character at the relevant date
  2. 2 Whether 'FUNKY SHAPER' is confusingly similar to 'SHAPER' under section 5(2)(b) of the Trade Marks Act 1994
  3. 3 Whether the hearing officer's finding was open on the evidence

Ratio Decidendi

The hearing officer was entitled to find, on the evidence, that 'SHAPER' lacked all distinctive character at the relevant date and that 'FUNKY' added nothing distinctive; neither mark would be seen as indicating origin, so there is no likelihood of confusion under section 5(2)(b).

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; original decision of UKIPO upheld