Qantas and Virgin recently fought out a much repeated trade mark dispute about “how close is too close?” and a less frequent dispute about “to what extent do we (the reasonable consumer) notice punctuation in a trade mark?”
The marks in question were:
- Qantas – ALL DAY, EVERY DAY, LOW FARES
- Virgin – EVERY DAY LOW FARES
The case primarily turned on two claims brought under sections 58 and 60 of the Trade Marks Act (as it then was, pre-2007 amendments). The two grounds of contention boiled down to two key questions:
- are the marks deceptively similar or substantially identical?
- did Virgin have a reputation in the trade mark ‘EVERY DAY LOW FARES’ prior to Qantas registering its mark in November 2003?
Virgin failed to succeed on either question, and consequently failed in its claim against Qantas.
On the first question, the Delegate found that the presence of the words ‘ALL DAY’ and the two commas constituted a clear visual difference between the marks. Further, the commas provided for an aural difference because when the Qantas mark was read, separate emphasis was placed on each portion of the mark. Consolidating Virgin’s failure on this point was the finding that the marks were both essentially descriptive rather than distinctive.
On the second question, the Delegate agreed that Virgin had a reputation prior to November 2003 and that consumers associated it with low fares. The Delegate considered the public to understand ‘EVERY DAY LOW FARES’ as descriptive of Virgin’s services, but denied the contention that the public recognised the slogan as a trade mark.
Two points to take away from the decision:
- The conclusion reached by the Delegate implicitly comments on the level of awareness of the reasonable consumer as to whether a slogan or phrase is used as descriptive of good and services, or as a trade mark. Consequently, this does not bode well for those wishing to protect a trade mark which is essentially descriptive of the product or services offered.
- The reasonable consumer (or at least the reasonable consumer of airline services) is possibly more literate, and possesses a higher degree of attention to detail, than you or I may have thought. This does bode well for those wishing to distinguish their make by way of grammatical subtleties.