28 March 2019Trademarks

HBO secures small win with ‘Ballers’ TM

US TV network  Home Box Office (HBO) has managed to partially halt a UK trademark for ‘The Baller Network’, filed by British company Prospect If.

In a  decision issued on Monday, March 25, the UK Intellectual Property Office (IPO) said that The Baller Network’ had “survived for the most part and [HBO] has been successful only to a narrow extent”.

HBO took issue with the trademark because of its similarity to “Ballers”, a comedy-drama TV series starring Dwayne Johnson, about an American football star trying to reinvent himself as a financial manager for current American football players in Miami.

In June 2017, Prospect If applied to register ‘The Baller Network’ for classes 9, 16, 25, 35, 36, 41 and 44, covering goods and services including mobile apps, vouchers, clothing, advertising and entertainment services.

HBO opposed the mark in September 2017, citing two EU marks for ‘Ballers’, which covered all the above-mentioned classes, except class 44.

The IP office found that HBO’s evidence affirmed that “Ballers” had been broadcast in the UK, but that the evidence was “not particularly persuasive” as regards proof of reputation.

While the IPO concluded that many of the goods covered were not similar, it did find that some goods, including clothing and downloadable multimedia files, were similar or identical

When comparing the marks, Louise White, on behalf of the IPO, said: “It is considered that ‘Baller’ is the naturally most distinctive feature as its meaning is unclear and it is unusual.”

However, she added that “other elements are not negligible”, before finding that the marks are visually and aurally similar to a medium degree.

White rejected Prospect If’s submission that the term “baller” is well known in the UK. According to the IPO, Prospect If’s argument took several forms, including that a footballer can be described as a “baller” and that the tv show “Ballers” will lead to an understanding of the term in the UK.

In rejecting the argument, White said: “In terms of a footballer being known as a baller, there is also no evidence in support and it is considered that should a footballer be known in this manner, any evidence would have been reasonably easy to collate.”

The IPO ruled that the word ‘ballers’ was unusual and therefore likely to provide a “hook” in the average consumer’s mind.

On this basis, the office found that there was a likelihood of indirect confusion between the marks and, in respect of the goods and services found to be identical or similar, the opposition succeeded.

However, the application was allowed to proceed to registration on many goods and services and HBO was ordered to pay costs of £800 ($1,050).

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