The likelihood of ‘actual confusion’ occurring between two trade marks was put under the spotlight recently in a case coming before the High Court.

The case centred on two pet insurers. The claimant alleged that their registered trade mark – ‘VETSURE’ – had been infringed by the defendant, which operated under the sign ‘PETSURE’. The claimant also argued that the PETSURE mark was invalid.

The Court’s considerations in regard to the infringement claim included an exploration of whether or not the use of the PETSURE trade mark gave rise to a likelihood of confusion on the part of the public. In accordance with the law, the matter needed to be judged through the eyes of the average consumer of the goods or services in question. It was agreed that the average consumer in this case would be a pet owner with an average level of attention.

Although the claimant asserted that the VETSURE brand enjoyed enhanced distinctive character that would increase the likelihood of confusion in consumers’ minds, the Court disagreed, citing that the business had a relatively small share in a market in which there were numerous providers.

It was further found that the claimant’s evidence of confusion on the part of consumers, which included examples of emails, telephone calls and online chats, did not give sufficient indication that the average consumer would be confused in the relevant sense. The infringement and invalidity claims were dismissed, along with an additional passing off claim.