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THE STORY TO DATE
After two years of toing and froing between the English High Court and the European Courts of justice, a decision was handed down for the Arsenal v Reed case by the Court of Appeal on 21st May, 2003 in the long-running battle between the Arsenal Football Club (AFC) and Mr Reed, the street trader selling football souvenirs.
High Court
The Arsenal case kicked off in April 2001 when AFC brought proceedings against Mr Reed alleging trade mark infringement and passing off.' Mr Reed had, for over 30 years, been selling, on the grounds of the AFC's pitch during matches, football memorabilia and souvenirs such as badges, hats and scarves bearing the AFC's trade marks 'ARSENAL' and 'GUNNERS' together with AFC's cannon logo.
At the hearing, the claim of passing off was unsuccessful as the AFC failed to provide evidence to establish that members of the public confused Mr Reed's goods with theirs. This was unsurprising given that AFC made great efforts to ensure that supporters were aware that only certain goods could be described as Official'. AFC's licensed traders around the AFC ground displayed signs stating that Only official merchandise is sold here'. It was also significant that Mr Reed had installed a sign at his stall which bore a notice to the effect that the goods were not Official'. Additionally Mr Reed, when he had been able to acquire and sell official AFC merchandise, made it clear to his customers what was, and what was riot, official merchandise.
In respect of the claim for trade mark infringement under the Trade Marks Act 1994, Mr Reed accepted that the words and logos on his products were identical or sufficiently similar to AFC's registered trade marks. he defended himself, however, by saying that his customers perceived the purchased products merely as badges of allegiance and loyalty towards AFC. Therefore, use of AFC's trade marks on his products did not infringe as it was not 'trade mark use' in a strict legal sense (which was to indicate the goods originated from AFC).
AFC disagreed with this view, relying on previous decisions in Britisli Sugar pic v James Robertson & Son Limited2 and Philip Electronics Limited v Remington Consumer Products? Those cases laid a...