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Play-Doh nuts Yummy challenge

18 February 2011

Hasbro, owner of the modelling material PLAY-DOH, has succeeded in its trade mark infringement action against the manufacturer of “Yummy Dough”. The objection was to the accompanying strap-line “the edible play dough”. Whilst many may consider this phrase descriptive, especially given that “PLAY-DOH” has an inherently low capacity to distinguish the goods of one undertaking from those of another, the court determined that a global comparison was required. A distinction was drawn between home-made and commercial dough, it being shown that commercial traders generally refrained from using “play dough” in their branding. The strength of the brand (with the benefit of its acquired distinctiveness) apparently justified upholding allegations of infringement and passing of and resisting an invalidity attack. It is surprising that this strapline when used alongside the main “Yummy Dough” resulted in a finding of infringement. The case demonstrates however that less inherently distinctive brands may be enforced provided a relevant section of the public identifies the goods as originating from the trade mark owner.

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