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Face what?

There is a concept in Trade Mark law in the UK and Europe which says that a new or recent brand cannot take advantage of or free ride on the distinctive character or repute of a well known, established Trade Mark. Essentially what this means is if your trade mark is popular and has “goodwill” in it, then in certain circumstances, it is possible to prevent immitators from affixing similar brands or trade marks as that of your trade mark / brand, on their goods or services, in the course of trade.  Closely related to this notion, is that the new mark / brand can tarnish or dilute the reputation of your popular, well known,  symbol of quality that is your trade mark. In practice, its a lot more complex than that but the above is a fitting summary for the purposes of this post.

Facefood cafe opens in Cardiff.  Its not the first, there’s a similar concept in Malaysia:

Facefood canteen in Istanbul , and another in Turkey here:-

One in Egypt:

Theres even one in Germany:

And another, this time in Reitberg:

However, the above concept is limited in so far as the wording of the new brand itself is similar to the old brand. Thus, while in the US, there is the doctrine of trade dress, in which the look and feel of a brand can be protectable, in the UK, there isn’t as such an equivalent doctrine. Instead we have passing off, which coupled with the “getup” in a brand, can be used to stop such type of immitations.

But does this extend to the “look and feel, even when the constituents of the brand itself are slightly different?

Well, our Welsh Facefood may just about get away with it unless in a passing off action a court decided  that in this particular case the similarities (they would look at the dominant part of the composite word that makes up the brand which in this case is  the word “FACE”, and the extent to which visually, aurally and conceptually the brand as a whole is similar to the variant/copycat) and association between Facebook and Facefood is just too close.

But isn’t that trying to bring in Trade dress through the back door, which would be monopolistic and detrimental to trade?



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