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Finding of 'genuine use' ends the Specsavers trade mark saga

17 October 2014

The Court of Appeal has concluded that Specsavers’ extensive use of its green shaded logo mark containing the word Specsavers in white also constitutes ‘genuine use’ of its wordless logo mark (two overlapping ovals registered in black and so in respect of all colours). Specsavers’ wordless mark will therefore remain on the register.

This is an example of a device mark having obtained independent distinctive character despite always being used in combination with a well-known word mark. The court accepted evidence that when Specsavers signage is viewed from a distance, the word Specsavers does not stand out and consumers still recognise the overlapping green ellipses as indicative of the origin of Specsavers’ goods and services. Accordingly such uses do not change the mark’s distinctive character (despite portions of the wordless logo, as registered, being ‘hidden’ beneath wording).

However, it is unlikely that the background of many logos will be perceived as an indication of origin. Each case will be determined on its facts.

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