'China Tang' trade mark infringed on the basis of notional use across the specification (Gnat and Company and another v West Lake East and another)

Article summary

IP analysis: His Honour Judge Hacon has considered a trade mark dispute in the IPEC between two restaurants which have operated since 2009 at opposite ends of the market under the same name without any instances of confusion coming to light. The claimants claimed their registered trade mark featuring the name 'China Tang' was infringed by the defendants' use of this name for their takeaway food business. The judge found no passing off or infringement under section 10(3) of the Trade Marks Act 1994 (TMA 1994), but infringement under TMA 1994, s 10(2) on the basis of 'notional use' of the claimants' mark across its specification. Furthermore, the defendants' acts were not covered by the defence of honest concurrent use. This defence would rarely apply and here the defendants' failure to carry out any searches before adopting their trading name was key—notwithstanding Mr Justice Arnold's comments in...