Our client, the operator of the "Vetsure" premium pet insurance brand, has successfully overturned the decision of the High Court, with the result that a pet insurance business operating as "Petsure" has been found to infringe its trade marks and to have committed the tort of passing off.
The High Court had originally found that the marks Vetsure and Petsure were sufficiently different, in the concepts they conveyed, to avoid a likelihood of consumers being confused.
The Court of Appeal has overturned that decision, finding a number of errors in the High Court Judge's approach. It found that the two marks are conceptually similar (both alluded to, but were not purely descriptive of, pet insurance), albeit there was no need for them to be conceptually similar, given that they were so close visually and aurally.
These errors in the High Court decision led the Court of Appeal to re-assess the evidence of confusion amongst consumers of the two brands. The High Court had largely dismissed this evidence as showing merely "administrative confusion"; the Court of Appeal disagreed and found that consumers of pet insurance were being actually confused. This evidence of actual confusion was "probative of a likelihood of confusion in this case", resulting in a finding of trade mark infringement and passing off against Petsure.
The outcome is that Petsure will have to re-brand under a different name.
Ashley Gray, Managing Director of Vetsure, said: "This is a crucial victory. The presence of another pet insurance brand under such a similar name was causing Vetsure real problems in the form of both confused customers and confused veterinary practices who process claims on behalf of their insured customers. It has been a genuine pleasure to score this win with the dedicated team at Mishcon, who have offered exceptional support both professionally and personally throughout this journey."
Peter Nunn, Partner at Mishcon de Reya, who represented Vetsure, commented: "I am delighted that Vetsure has succeeded in this battle with Petsure. This was not a case of a trade mark owner simply trying to keep clear blue water between itself and other brands – it was a vital battle to avoid an erosion of the trade mark's ability to distinguish Vetsure from a competitor."