James Mellor QC recently appeared on behalf of Specsavers International Healthcare Ltd & Others in this appeal against an order for revocation of Specsavers’ overlapped ellipses wordless trade mark. Charlotte May QC acted for the Registrar of Trade Marks as an intervener.
Following references to the Court of Justice of the European Union, the Court of Appeal found that the use of the shaded logo mark, comprising the word “Specsavers” against the background of two overlapping ovals redolent of a pair of glasses, also constituted genuine use of the wordless trade mark comprising the overlapping ovals alone. The evidence showed that the wordless mark identifies goods and services to the average consumers as those of Specsavers. In other words, the wordless logo mark is perceived as a trade mark and not simply as a background.
The Court of Appeal emphasised the exceptional circumstances of the case and that in general it is unlikely that the background of a mark will be perceived by the average consumer as an indication of origin. The appeal was allowed and the trade mark was not revoked.
James Mellor QC was instructed by HGF Law and Charlotte May QC was instructed by the Treasury Solicitor.
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