James Mellor QC, Jonathan Hill and Maxwell Keay appeared for the Appellant, Argos Limited. Martin Howe QC and Jaani Riordan appeared for the Respondent, Argos Inc.
The Appellant is a well-known consumer goods retailer, based in the UK and trading mainly in the UK and Ireland. The Appellant is the registered proprietor of the EU trade mark ARGOS and the owner of the website www.argos.co.uk. The Respondent is an American company which sells construction software in the Americas and is the owner of the website www.argos.com. That website had featured adverts for the Appellant that included the Appellant’s mark. A substantial number of UK-based internet users had mistakenly visited the Respondent’s webpage, believing it to be that of the Appellant. The Appellant brought a claim for trade mark infringement, on the basis that advertising revenue gained from this internet traffic was earned by taking unfair advantage of the Appellant’s trade mark’s reputation.
The Court of Appeal upheld the trial judge’s decision, agreeing that the Appellant’s trade mark had not been infringed. Contrary to the trial judge, the Court found that adverts on the Respondent’s website which were of interest to UK consumers were targeting such consumers. The Court further held, contrary to the trial judge, that there was the requisite link between use of the sign and the Appellant’s trade mark. However, the trial judge had been justified in finding that the advantage taken was not unfair. Establishing mere economic advantage was not enough to make out infringement and, on the facts, the advantage was not unfair.