25 February 2019Trademarks

HBO fails to cancel ‘Game of Vapes’ TM

American television network  Home Box Office (HBO) has failed to have a ‘Game of Vapes’ UK trademark application cancelled.

HBO had argued that the mark was likely to cause confusion with its hit television show “Game of Thrones”.

In its  decision, issued Thursday, February 21, the UK Intellectual Property Office (UKIPO) ruled that although the marks were phonetically similar, they were unlikely to cause any confusion among customers as to their origin.

Maanhoman Singh, of Salford, UK, applied to register his ‘Game of Vapes’  logo (application number 3226584) in April 2017. The mark covers class 34, including tobacco and matches.

HBO opposed the application, arguing that it would infringe the network’s EU trademark for its TV show “Game of Thrones” (number 11632635), which covers merchandise such as lighters, ashtrays and cigarette holders

The network argued that Singh’s ‘Game of Vapes’ mark would unfairly benefit from HBO’s investment in advertising for “Game of Thrones”, and “ride on the coattails” of the show’s reputation and prestige.

The UKIPO found that it was unlikely there would be any direct confusion between the marks owing to the significant difference in concept.

It was also unlikely that the marks were likely to cause any indirect confusion among consumers, or cause members of the public to think the marks were in some way related, the decision said.

According to the ruling, although it was likely that some members of the public would associate the two marks, it was not evident that they would be confused as to their origin.

For a finding of indirect confusion, “it is not sufficient that a mark merely calls to mind another mark”, UKIPO said.

UKIPO also rejected HBO’s argument that it has a reputation in respect of the goods and services covered by the ‘Game of Vapes’ mark.

“It is difficult to see how the public would view this use over and above the typical merchandising activities one would expect from a successful television show”, UKIPO said.

It is the second such defeat for HBO this month. Recently, WIPR reported that the network had failed to overturn a trademark application by a UK brewery for ‘Game of Stones’.

UKIPO awarded costs of £800 to Singh.

WIPR has contacted representatives for HBO for comment.

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