Microsoft are set to appeal a High Court ruling laid down by Mrs Justice Asplin. The Judge ruled that Microsoft infringed Sky International’s trade mark ‘Sky’ in relation to the identity and similarity of goods covered by Sky’s registration, by naming one of its products ‘SkyDrive’. Mrs Justice Asplin further ruled that Microsoft was liable for passing off its SkyDrive product as being part of Sky International.
Sky International’s registration is protected within the EU and UK. The Trade Marks Act 1994 (TMA) in the UK, and the Community Trade Marks Regulation (CTMR) in the EU contain provisions that give earlier right holders the right to restrict the use of signs that are identical or similar to their trade mark and is used in conjunction with identical or similar goods and/or services which confuses an average consumer into believing the product, i.e. SkyDrive is linked to Sky International as opposed to Microsoft.
The ‘average consumer’ is someone who is in this case, “a reasonably well informed and observant user of broadband internet services”, who would have been likely to confuse Microsoft’s SkyDrive product with that of Sky International. To prove the level of confusion caused, Mrs Justice Asplin was presented evidence by Sky International of the confusion experienced by Sky users in relation to the origin of SkyDrive.
The evidence further revealed that there was a close and complimentary connection between the services of Sky International’s trade mark rights and the services linked to SkyDrive.
Finally the Judge concluded that there was a “serious risk of loss of distinctiveness in the sense of dilution, whittling away, or blurring” in the minds of an average consumer.
A spokesperson at Microsoft said Microsoft intends to appeal against the ruling.
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