- Alert: Trade mark infringement and passing off in Amazon listing case (JadeBay v Clarke-Coles)
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IP analysis: The Intellectual Property Enterprise Court has ruled that the use by the defendant of the claimants’ Amazon listings for the sale of its own unrelated products constitutes trade mark infringement and passing off, in a case which clarifies the status of the use of signs as a descriptor in Amazon listings. The first claimant is the registered proprietor of a UK device mark for DESIGN ELEMENTS and the second claimant is its licensee. The claimants’ Amazon listings refer to the flagpoles for sale on those listings as being by ‘DesignElements’. The court held that the use of the listings by the defendant for the sale of its own flagpoles constituted trade mark infringement pursuant to section 10(2) of the Trade Marks Act 1994 (TMA 1994), but did not constitute infringement pursuant to TMA 1994, s 10(3) because it was not satisfied that the mark had a reputation among a significant part of the relevant public. It also held that the use constituted passing off. The court was asked to assess quantum as well as liability. It awarded the claimants £38,000 to compensate them for lost profit on each product sale made by the defendant, but declined to make an award for any damage suffered by the second claimant as a result of having to reduce its price to compete with the defendant, because this head of damage was not satisfactorily made out.
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