Trade Marks

Customer Complaints Identify Trade Mark Infringement

September 24, 2013

How good is your business at listening to consumer comments? A recent court case between Microsoft and Sky Television underlines that they may be one of the best sources of information that your intellectual property is being infringed, and also demonstrates that if you have not cleared a mark for use, the fact you have not had any disputes in the past is not enough to be sure that they will not arise in the future.

Microsoft launched its SKYDRIVE product a number of years ago as an add-on to its HOTMAIL email service. At first they called it WINDOWS LIVE SKYDRIVE, later changing to simply SKYDRIVE and began using the mark on other devices such as Xboxes and portable devices. Whilst Sky did not take action to stop the use at first, it brought a court case once Microsoft changed to make SKYDRIVE more prominent. Their argument was that it damaged their rights in the mark SKY. The court agreed that the marks were likely to be confused and that the distinctiveness of the SKY brand would be whittled away by Microsoft’s mark since consumers were likely to think of SKY when they encountered the mark SKYDRIVE. Importantly, Sky had filed evidence that it received a number of complaints to its customer services department and requests for help when Microsoft had difficulties with their SKYDRIVE service. They were the able to rely upon this in court, and the judge concluded that this was clear evidence of confusion. For brand owners, the evidence which can be found online in message boards, on social media and from customer service departments is of huge significance for trade mark infringement cases. In a “normal” case where there is no proof of actual confusion, the company claiming that there will be confusion often tries to file surveys. Where there is real evidence of confusion (shown on message boards, Facebook pages or in calls received by customer service departments), however, this will be much stronger. Our team has substantial experience in helping businesses to combat trade mark infringements. If you would like to discuss this then please contact your usual trade mark contact at Swindell and Pearson or Aaron Wood at [email protected]

Swindell & Pearson has been helping businesses and individuals protect and defend their ideas, innovations and brands for over 130 years. With its head office in Derby, the firm also has offices in Stoke, Wolverhampton, Stafford, Sheffield and Burton. To find out how Swindell & Pearson can help you with any intellectual property requirements please get in touch via [email protected] or by telephone on 01332 367 051.