24 April 2018Trademarks

Bible reference not enough for TM applicant in Under Armour opposition

Sportswear brand Under Armour has succeeded in its opposition of two trademarks at the UK Intellectual Property Office (IPO).

On Wednesday, April 18, the IPO found that the applied-for trademarks, which feature the words ‘The Armour’, were confusingly similar to Under Armour’s trademark.

In April last year, Dara Lambuella Knox-Hooke sought to register the two trademarks, covering classes 18 and 25, which include bags, clothes and footwear for a Christian faith-based brand.

Under Armour opposed the registrations, claiming that the applied-for marks were confusingly similar to its own, that its own marks have a reputation in the UK so the applied-for marks would take unfair advantage, and that Under Armour has goodwill in its marks.

Knox-Hooke filed a notice of defence and counter statement denying all grounds.

However, because Under Armour did not provide any evidence to support its claims, most of its grounds of objection were struck out, leaving only the confusingly similar opposition.

Under Armour relied on five EU trademarks (EUTMs), but Matthew Williams, on behalf of the IPO, focused solely on EUTM number 011,978,764, which covers the word ‘Armour’.

After concluding that the average consumer is the general public who will purchase the goods in shops or via the internet, Williams found that there would be a medium or average level of attention from the consumer.

The parties’ specifications also include some identical terms, he added.

“Moreover, it is clear from case law such as Gérard Meric v Office for Harmonisation in the Internal Market that goods can be considered as identical when the goods designated by the earlier mark are included in a more general category designated by the trademark application or vice versa,” said Williams.

Although the addition of ‘The’ in the applied-for marks was “not negligible”, because it is the definite article it is “relatively non-distinctive”, Williams said. He found the marks to be visually and aurally similar to a high degree.

Knox-Hooke claimed that the mark derives from the Bible scripture “Put on the whole armour of God, that you may be able to stand against the wiles of the devil” (Ephesians 6:11).

“However, I find that the public at large would not be aware of that Biblical reference,” said Williams, holding that the marks are conceptually similar to a high degree.

After finding that Under Armour’s mark is inherently distinctive to a medium degree, Williams concluded that the marks may confuse consumers.

Knox-Hooke was ordered to pay Under Armour £600 ($835).

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