Essay Example on A new type of trademark infringement

A NEW TYPE OF TRADE MARK INFRINGEMENT OR A BENCHMARK FOR ONLINE RETAILERS Here's one case which involves an online retailing businesses that is having a link with Trade mark Law Jadebay Ltd and others v Clarke Coles Ltd t a Feel Good UK 2017 EWHC 1400 IPEC However overlooking the customary practice of online retailing methods the Intellectual Property Enterprise Court followed the theoretical root of the Trade mark laws and over turned such practices by upholding that re use of a third party s Amazon listing without consent to sell the same goods may on appropriate facts amount to trade mark infringement or passing off The factual matrix of this case lies as below In this matter there were two claimant the first one was the statutory and common law owner of the Trade mark Design Elements for the purpose of flagpoles plastic storage box garden furniture while the second Claimant was the sole licensee since 2011 to sell the products of the first claimant These products were also sold through online shopping portal namely www amazon co uk via three listings created by the second claimant 

Usually the common practice while listing products for sale on Amazon or any such kind of online portals are that each new listing is given a Unique Amazon Identification Number ASIN It is pertinent to note that an Amazon listing created by one party can be used by multiple sellers selling common product Amazon then tends to promote the cheapest of the offerings by selecting them as the default seller allowing consumers to review each listing in more detail Thus in this case the issue arose when the defendant listed its product under the listing created by the claimants with a low price due to which they appeared as the default seller attracting majority of sales from the said listing Interesting fact about this case is that the claimants sued the defendants for trade mark infringement and passing off and did not even involve Amazon who encourages sellers to use pre existing generic ASINs where possible Arguments The claimant focussed on the basic concept of rights of trademark Firstly the owner of the trademark has the right to prevent the third party from commercially using any sign without the permission of the TM owner that is identical to the trade mark in respect of goods or services which are identical to those for which the mark is registered double identity section 10 1 Trade Marks Act 1994 TMA section 10 1 or by such use of trademark that causes a likelihood of confusion or association on the part of the public section 10 2 b TMA section 10 2 b Secondly the law of passing off a trade mark which is considered as an element of Tort the essential feature that is considered to attract this tort is the goodwill attached to the trade mark such misrepresentation leads to likelihood of confusion among consumers due to which the claimant suffer damage as mention in the case of Reckitt Colman Products Ltd v Borden Inc 1990 RPC 341