UKIPO blows away Superdry's trade mark opposition

Superdry, the UK clothing brand, have succeeded in trade mark opposition proceedings brought by Wind Sportswear, a German sportswear brand.

The opposition was filed by Wind after Superdry applied to register a UK trade mark for the word marks 'Windyatcher', 'Windtrekker', 'Windattacker', 'Windhybrid' and 'Wind Hybrid' in class 25 for goods such as clothing, footwear and sportswear. Wind is the owner of an EU trade mark for the word 'Wind' as applied to classes 18 for goods such as bags and accessories and class 35 for services such as advertising and retail services. Wind also owns other trade marks including the word 'Wind'.

In its opposition, Wind claimed that Superdry's trade mark applications were very similar to its own marks; the company submitted evidence in support of its opposition, such as clothing bearing its marks.

In its counter argument, Superdry highlighted differences between the marks. They argued that on clothing such as outerwear, 'Wind' suggests that the particular garment is wind proof and that subsequently it is of "little distinctive character".

The UK Intellectual Property Office sided with Superdry in its submission and concluded that the use of the 'Wind' mark on outerwear was not distinctive enough as it merely describes the nature of the product. The Office stated that Wind had not done enough to prove that its marks had acquired an enhanced distinctiveness.

The UKIPO concluded by stating that the differences between the brands' marks meant there was unlikely to be confusion amongst consumers.

The Office ordered Wind to pay Superdry its costs above the normal scale as a result of what the Office described as "unreasonable" behavior from Wind.

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.