Assos v Asos is a good example of how two apparently very similar trade marks can be held to co-exist side by side despite appearing to inhabit similar territory, and how it can be dangerous to adopt too simplistic a view of infringement and passing off. It is not enough to simply say "the marks are similar and what they are being used for is similar –therefore there must always be infringement". Trade mark law works more subtly than that.
Despite the very similar competing marks – ASOS and ASSOS –there was, ultimately, no actionable infringement or passing off.
The case also demonstrates how survey evidence and other artificial means of obtaining evidence of confusion can, in certain circumstances, end up backfiring. In this case, both the survey and the prize draw had the effect of strengthening the judge in his view that there was no infringement or passing off occurring. The analysis of the Google analytics and other web data appears to have had the same effect too.
It remains to be seen whether Assos will want to appeal this judgment in the hope that the Court of Appeal takes a different view of the evidence. There certainly is a recent precedent for that happening.
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