The UK Supreme Court (the country’s highest court of appeal) has refused permission to appeal in the long-running Assos v Asos trade mark dispute.
As reported in our post on 2 April 2015 here, the Court of Appeal held that online retailer Asos did not infringe Swiss clothing company, Assos’s, Community trade mark as use of the ASOS brand was defensible under the ‘own name’ defence in Community law.
Asos had, in the Court’s opinion, acted in accordance with honest practices despite not having conducted trade mark clearance searches and having continued to use the mark after becoming aware of Assos’s prior rights.
In its decision, the UK Supreme Court ordered that permission to appeal be refused on the basis that the application did not raise an arguable point of law of general public importance. According to a release published on the Court’s website here, “the relevant principles are not in issue only their application to the facts of the case. In relation to the point of European Union law said to be raised by or in response to the application it is not necessary to request the Court of Justice to give any ruling, because the Court’s existing jurisprudence already provides a sufficient answer”.
The decision of the Court of Appeal now stands as the current law on the scope of the ‘own name’ defence. Brand owners will be watching closely to see how the decision is applied going forward and whether it will be limited to its specific facts.