Out-Law News 2 min. read
14 Oct 2008, 9:36 am
A spokeswoman for The Absolut Company confirmed that a High Court action had been taken because there was a risk of confusion and of Absolute Radio 'passing off' its services as Absolut's.
A spokeswoman for Absoloute Radio confirmed that it had received notice of the case. "They want us to stop using the Absolute Radio name and they want to cancel the registration of our trade mark because they feel it is too similar to theirs," said the Absolute Radio spokeswoman.
"We think the two are completely different, ours is a music and entertainment brand, theirs is a vodka drinks brand, and we are confident that our listeners recognise the difference between the two, as would Absolut's drinkers," said the Absolute Radio spokeswoman.
One trade mark law expert said, though, that Absolut may well have a strong case because their promotional activities have extended into areas other than just the selling of vodka.
"V&S Vin & Spirit do vigorously police their Absolut brand and have argued in the past that it is a well known mark thus affording it a wide scope of protection," said Lindsey Wrenn, a trade mark law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM. "The brand is also extensively merchandised which does assist in extending its reputation and goodwill beyond just vodka. For example, I understand that they have used the Absolut Tracks mark since 2005 in relation to remixed music available as downloads."
Wrenn said that the addition of the word 'tracks' by Absolut or the word 'radio' by Absolute Radio did not render either term especially distinctive, which increases the likelihood that a court will decide that market confusion between the trade marks could exist.
"In this case it is not only a question of potential passing off but also trade mark infringement given that Absolut Tracks is a UK registered mark for entertainment and communication services including 'broadcasting programs on a global computer network'," she said.
"The services claimed in the Absolut Tracks registration clearly overlap with the radio broadcasting services offered by Absolute Radio. There is an argument that the word 'absolute' is laudatory, for example, as referring to 'the best radio station', but I still think that the Absolut brand and its underlying registration are strong enough for the two marks to be confused," said Wrenn.
The Absolut spokeswoman also said that Absolut was worried about the company falling foul of alcohol advertising rules.
"Absolute Radio targets a wider and younger audience than Absolut vodka in different media channels," she said. "There is a risk for confusion – consumers may perceive this as undue advertising to young people who are not of legal drinking age, which goes against the efforts of Absolut vodka as a responsible spirits brand."