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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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We registered the trade mark "Trading Hut" as the brand name

Resolved Question:

We registered the trade mark "Trading Hut" as the brand name to our online retail business. It has come to our attention that the term Trading Hut is being used amongst allotment associations, so much so if you enter "Trading Hut" in Google you are presented with pages of allotments advertising their Trading Hut. Do we have a case in law in trade mark infringement?
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

Alex Watts :

Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

How long have you been trading and is the different name in another sector please?

Customer:

We have been trading since August 2013. Not sure if I know what you mean "is the different name in another sector"

Alex Watts :

What do you sell - what do they do?

Alex Watts :

Retailer you and allotments them, is that correct?

Customer:

We sell fair trade items, the allotment trading huts provide items for allotments, its the confusion of the name. We have had customers going to these sites thinking that they were part of our brand.

Alex Watts :

But they are not using your logo, selling your products or anything of a similar nature, except for the name?

Alex Watts :

How long have they been trading? Are they local to you?

Customer:

There maybe some cross over in items we/they sell as we do sell items for the garden but it is mainly the name as our customers think they are part of us, that we sell allotment items. We have been trading since August 2013. The allotments are not local geographically but both operate online.

Alex Watts :

When did they trade?

Customer:

I have no idea, there are more than one that uses the name

Alex Watts :

Just because you own a Trademark on a name does not give you exclusive right

Alex Watts :

This is because for example McDonalds as you know is burger

Alex Watts :

But if they had the TM that would mean no-one else could use that name whatsoever

Alex Watts :

Of course that would be impossible and too limiting.

Alex Watts :

Only if it was in the same sector ie fast food would it be a problem

Alex Watts :

Therefore if they were in the same sector or selling to the same market as you, then it would be a problem

Alex Watts :

But if they are not then it is not an issue for passing off

Alex Watts :

This is because you are an online retailer, they are allotments.

Alex Watts :

Therefore it does not appear to be the same sector.

Alex Watts :

As for the Google listings, the allotment company has NO control over that.

Alex Watts :

Google own and decide the sequence of listings.

Alex Watts :

Someone can even purchase keywords to use to get better listings.

Alex Watts :

In any event they could have been trading for longer than you.

Alex Watts :

So if they had been trading pre August 2013 then even if they were using the same name then if they had been trading before you, you could not stop them using the same.

Alex Watts :

As you know the test is can customers be confused between you and them

Alex Watts :

If they have a similar logo, similar products, they are close to you, then you may be able to take action

Alex Watts :

But apart from the name if it is clear that you are not them, any action would fail.

Alex Watts :

Trading Hut is not no unique it can't be used anywhere else.

Alex Watts :

I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

OK. I think you have answered my original question. I do not have a case. I guess I will need to get our customers to enter our web address rather than entering it in Google. Thank you for your time.

Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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