IP analysis: TVIS has successfully appealed the finding that its claim for infringement under section 10(2) of the Trade Marks Act 1994 (TMA 1994) failed. Howserv’s use of PETSURE for pet insurance services resulted in a likelihood of confusion and therefore infringed TVIS’s trade mark for VETSURE, registered for identical services. Lord Justice Arnold gave the leading judgment in the Court of Appeal and concluded that although VETSURE alluded to insurance against veterinary costs, a major component of most ‘pet insurance’ services, it did not describe that service. The trial judge’s finding to the contrary impacted his assessment of the inherent distinctiveness of the VETSURE trade mark. Furthermore, the trial judge was inconsistent in finding that the mark lacked acquired distinctiveness but possessed a ‘reputation’. These and other errors made it necessary for the appeal court to assess the likelihood of confusion afresh. Written by Bonita Trimmer, consultant and Alice Elliott-Foster, associate, at Browne Jacobson LLP.
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