D 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 D’s stall, stating that his goods were not ‘official’ Arsenal merchandise. C sued for infringement under Section 10(1) (identical goods and identical marks). Held:
ECJ
· Use of mark is in course of sale of goods to consumers
Ø Thus is not for descriptive purposes
Ø Rather it creates impression of ‘link’ between C and D.
· 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 D’s use.
· Thus on facts, is infringement
Ø Is irrelevant that sign is perceived as badge of loyalty and not origin
