When christening a new business it is madness not to take professional advice so as to ensure that you are not transgressing anyone else's intellectual property rights. A case on point concerned a modest Chinese takeaway that shared the same name as an opulent London restaurant favoured by celebrities.
The restaurant opened in 2005 amidst the grandeur of a top London hotel and had a turnover running into millions. Its name, rendered in a stylised script, was protected by registered trade marks. The takeaway, which began trading in 2009, was at the other end of the country and served local people in a two-mile radius. Although the takeaway's sign was in a more basic font, it was otherwise very similar to that of the restaurant and the names of the two eateries were aurally identical.
After the restaurant launched proceedings, the High Court noted that the takeaway's trade had little in common with that of the restaurant, which boasted Kate Moss, Tony Blair and Naomi Campbell amongst its clientele. The customers of the restaurant were unlikely to have heard of the takeaway and vice versa. Although the businesses had been operating in tandem for a number of years, there were no documented instances of customers confusing one for the other.
In upholding the restaurant's trade mark infringement claim, however, the Court noted that the risk of confusion had to be seen through the eyes of the average consumer. In this case, the average consumer was a user or potential user of restaurant or catering services – in other words almost everyone in the UK. Seen in that light, the close visual similarity of the eateries' signs and the aural identicality of their names gave rise to a likelihood of confusion.
The takeaway's boss accepted that, when he chose its name, neither he nor anyone else did a trade mark search or an internet search for restaurants bearing the same or similar names. The Court had some sympathy for him but observed that setting up even the smallest business is likely to require competent legal advice on the choice of trading name. A public register of trade marks is there to be consulted, in part to ensure that the intellectual property rights of others are respected.