Arsenal Football Club v Reed [2003] EWCA Civ 696

• Defendant sold merchandise from a stall near Arsenal’s football ground; these goods contained a number of Arsenal’s trade marks which were registered for same goods.

• Was a notice on Defendant’s stall, stating that his goods were not ‘official’ Arsenal merchandise.

• Claimant sued for infringement under Section 10(1) (identical goods and identical marks).

ECJ

• Use of mark is in course of sale of goods to consumers

  • Thus is not for descriptive purposes

  • Rather it creates impression of ‘link’ between Claimant and Defendant.

• Exclusion notice is irrelevant

Court of Appeal

• Is possible for use of a trade mark which is not understood by public to denote origin to be infringement.

• This case where origin function of trade mark is liable to be harmed by Defendant’s use.

• Thus on facts, is infringement

  • Is irrelevant that sign is perceived as badge of loyalty and not origin

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