Daniel Alexander QC and Andrew Lykiardopoulos recently appeared in the High Court acting for the successful Defendant in Assos of Switzerland SA v ASOS Plc [2013] EWHC 2831 (Ch). The case concerned alleged community trade mark infringement and passing off by ASOS Plc through the use of the mark ‘ASOS’ which was alleged to infringe Assos of Switzerland’s registered mark for “ASSOS”. ASOS Plc counterclaimed for partial revocation of Assos of Switzerland SA’s community trade mark for non-use, for a declaration of invalidity based on their own prior rights, and also relied upon an own name defence.
Rose J held that Assos of Switzerland’s use of the mark “ASSOS” had only been in relation to a more limited category of goods than those for which it was registered and accordingly that ASOS Plc’s claim for partial revocation was successful to the extent of the non-use.
The judge then considered the likelihood of confusion having regard to, the available survey evidence and ASOS Plc’s use of the mark, and held that there was no such likelihood. Further the judge held that there was no risk of detriment to the ASSOS mark or unfair advantage taken by ASOS Plc.
Finally, the judge also dismissed the claim for passing off.