Jul 31, 2018

LNDR and LDNR confuse Londoners

In the Intellectual Property and Enterprise Court, Mr Justice Arnold has ruled that Nike has infringed a trademark owned by Frank Industries ("Frank") that is uses for its women's sportswear clothing brand LNDR. Frank owns the mark LNDR for use on sportswear.

Frank filed a claim for passing off and trademark infringement against Nike in January 2018 after discovering that Nike was using the sign "LDNR" in its advertising campaign. Nike launched its 'Nothing beats a LDNR' campaign in early 2018 and intended the letters to refer to 'Londoner'.

A month after Frank filed its claim, the clothing brand was successful in being granted an interim junction that forced Nike to stop the campaign until the resolution of the proceedings.

The main issue for the court to decide was how the average consumer would perceive the signs "LNDR" and "LDNR" in the context of the term London and the City of London.

Senior marketing director for Nike UK and Ireland, Jamie McCall, explained in court that the company have a history of six to eight years of using letter abbreviations for cities together with the famous 'Swoosh' mark so that the brand can be identified geographically. However, Arnold J was satisfied with Frank's argument that consumers may believe that Nike's use of LDNR would give the idea of a collaboration between the companies.

In holding that Nike had infringed Frank's mark, Arnold J stated that there was a likelihood that confusion may occur among consumers, taking into account the similarity between the marks, the type of goods and the degree of attention paid by the average consumer.

In contrast to typical intellectual property litigation where cases can between 18 and 30 months to get from bringing the claim to judgment, Frank Industries PTY Ltd v Nike Retail BV was commenced, heard and concluded in just under seven months.

The IPEC system of tight case management and its court rule procedure rules all played a part in the speedy trial, as did Mr Justice Arnold's willingness to sit in the court usually reserved for HHJ Hacon and his deputies. This case is also an example of the courts making availability where there was real urgency: in this case the urgency arose after the interim injunction was granted.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.

in: News, Passing Off, Trade Marks

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