The long-running European trade mark saga of Specsavers v Asda is of some interest to us in South Africa. It’s not necessary to go into the whole story, but what’s important is that Specsavers had a Community Trade Mark (European Union) registration for its logo – which consists of two overlapping elliptical devices- and a second registration for a combination of that same logo together with the name Specsavers superimposed on it. Specsavers, however, only ever used the combination mark. When Specsavers sued supermarket chain Asda for infringement of its logo registration, Asda countered by applying for the cancellation of the registration on the basis of non-use. Specsavers responded by arguing that the use of the combination mark should count as use of the logo mark.

So did it? Yes said the UK Court of Appeal, after getting direction from Europe’s highest court, the Court of Justice of the European Union (CJEU). Trade mark law provides that when it’s necessary to prove use of a registered trade mark, the authorities have discretion to accept proof of use of a mark that’s very similar to the registered trade mark. Although in this case the combination mark was quite different from the logo mark, the court felt that the critical issues were these – the distinctive nature of the logo mark was not affected in the combination mark, and the public did see the logo mark as a separate trade mark or indicator of origin underneath the combination mark.

The court reached this conclusion because evidence filed by Specsavers suggested that consumers saw the logo as a trade mark in its own right. The most interesting evidence was documentation that showed that Asda had quite deliberately set out to copy the Specsavers logo for its in-house optician service. As the court said, if Asda felt that the logo was worth copying, it was safe to assume that the logo did suggest commercial origin to consumers. In other words, the logo did serve as a separate trade mark. But the court did make a point of saying that the facts of this case were unusual, and that a registration for an unused logo mark wil not always be saved by proof of use of another mark that incorporates that logo.

What can we take from this? Well if your name does appear on your logo (and this is not uncommon), your best bet is probably three separate registrations –the name on its own, the logo on its own, and the combination.

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