9 April 2020Trademarks

Judge scolds 'argumentative' witness in pet food dispute

The English High Court’s IP division has intervened in a trademark dispute between two UK pet food makers, handing a victory to  Natural Instinct.

In its  decision, handed down on March 20 but only just published, the Intellectual Property Enterprise Court (IPEC) ruled that  Natures Menu’s ‘True Instinct’ brand of pet food infringed its rival’s trademarks.

The case was heard by David Stone, partner and global head of IP at  Allen & Overy in London, who also serves as a deputy high court judge.

Natural Instinct, which launched ten years ago, achieved revenues of £10 million per year by the end of 2017. It sued after the launch of Natures Menu’s ‘True Instinct’ brand, which it said was confusing consumers.

The company based its case on two registered UK trademarks for ‘Natural Instinct’ in different colours, both featuring the tagline “Dog and cat food as nature intended”.

Natures Menu denied the claims, but its case was weakened by Stone’s refusal to accept the evidence of its managing director except where it was “corroborated by contemporaneous documents or other witnesses”.

The Natures Menu chief was described by lawyers for Natural Instinct as a “self-confessed liar”, while the judge said he was not a “helpful witness”.

In particular, lawyers for Natural Instinct cited his claim that all of the 'True Instinct' products also bore the 'Natures Menu' brand, which the judge found to be untrue.

“He was argumentative, and prone to long exculpatory answers that did not address the questions put to him … In my judgment, he was neither frank nor forthright in his answers to the court, but was rather trying to give answers that he felt would assist the defendant's case or would not compromise the defendant's case,” Stone added.

According to the court, Natures Menu also failed to disclose examples of confusion from consumers who had contacted the company on social media channels such as Facebook.

Stone found there to be evidence of actual confusion between the brands, and found Natures Menu liable for trademark infringement and passing off.

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